MIA MD HANIF v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

1.  Form 86 be amended on the court’s own motion as follows:-

a.  the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office be named as the Putative Respondent; and

b.  the Director of Immigration be named as the Putative Interested Party.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 12 April 2021 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 29 March 2021 (the “Board’s Decision”).

2.  In the Form 86, the Applicant has named the Board as both the proposed respondent and the proposed interested party.  As it is trite that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party and to ensure that the parties are properly named, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.  An oral hearing was requested by the Applicant. It took place before me on 23 December 2025 (the “Hearing”) and the Applicant attended in person.

Background

4.  The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below[1] for reference. The Applicant’s case is that he was in conflict with an individual known as Enamul Haq Mamun and his associates who were connected to a political party known as Awami League (“AL”). The Applicant claims that his life would be in danger if he were to return to Bangladesh.

Discussion

5.  This type of leave application is intended to be a filtering process and elaborate reasons are not necessary, see:see Re Zunariyah [2018] HKCA 14, at §23).  Hence, I shall set out the brief reasons for my decision below.

6.  The applicable legal principles relating to this type of applications are well established.  The judicial review is not a further avenue of appeal. Though in non-refoulement cases, the Court will adopt a high standard of fairness to review the decision of the Board with anxious scrutiny due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence, country of origin information (“COI”) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board, see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

7.  In his affirmation in support, the Applicant set out various complaints apart from reiterating his claim that his life would be in danger if he returns to Bangladesh. The complaints can be summarised as follows:-

(1)   He complained that the Board did not conduct an independent analysis of his claim and the underlying evidence (§§1,7, 9).

(2)   It is alleged that the Board’s Decision was irrational and procedurally unfair (§§2, 5).

(3)   It was said that the Board did not fulfil a “greater care and duty” owed to the Applicant who was not self-represented (§4).

(4)   It was claimed that the sources which the Board relied upon were outdated, not “officially recognised” and/or incredible (§§8, 10).

8.  At the Hearing, the Applicant said he had nothing further to add to his application.

9.  At the outset, I should point out that, an applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) at §142 per Chow J (as he was then). Notwithstanding the myriads of blanket complaints raised by the Applicant, the Applicant has completely failed to particularise his grounds, e.g. by specifying exactly the sources which the Board is said to have erroneously relied upon, in what manner was the Board’s conduct of the appeal procedurally unfair and what errors the Board had fallen into so as to cause the Board’s Decision to become irrational.

10.  Notwithstanding the above failings of the Applicant, I have also considered the Board’s Decision carefully.  I do not see any merits in the Applicant’s challenge:-

(1)   For complaint (1), I am satisfied from reading the Board’s Decision that a meticulous analysis was conducted in respect of the legal and factual issues involved in the Applicant’s claim (§55):-

(a)   Having reviewed the decision of the Director dated 21 April 2020 against which the appeal was lodged to the Board, I am satisfied that the Board had conducted a thorough and independent analysis of the evidence and have considered all material aspects of the Applicant’s factual case (§§57-75).

(b)   I do not see any room to interfere with the Board’s conclusion that the risk of harm was low because the Applicant’s factual claim was incredible in light of his inconsistent and questionable evidence on material events concerning his claim (§77).

(c)   Further, even if the Applicant’s factual case were to be accepted, the Applicant was only an ordinary low level member of the Bangladesh National Party, there is simply no reason why the Adversaries would pursue the Applicant throughout Bangladesh (§§75, 83).

(2)   For complaint (2):-

(a)   In light of the Board’s Decision as analysed above, there is no basis to complain that it was irrational even on the enhanced Wednesbury standard.

(b)   The Applicant’s unparticularised complaint of procedural unfairness is unmeritorious. The Board held an oral hearing which was attended by the Applicant who had ample opportunities to make submissions and to submit documents in support of his case, I am satisfied that hearing before the Board was conducted fairly.

(3)   For complaint (3), I am satisfied that the Board has discharged its duties to embark on the joint endeavor to determine the Applicant’s claim and that the Applicant did not suffer any unfairness due to a lack of legal representation:-

(a)   The Board has been accommodating to the Applicant. The Board allowed the Applicant to submit an additional document (which was in Bengali) in support of his claim and that translation was provided by the interpreter even though the said document was only produced at the hearing before the Board (§§51-52).

(b)   At the hearing, the Board also actively sought clarifications from the Applicant on various discrepancies of the Applicant’s evidence and the Applicant was given opportunities to address these matters (§55).

(4)   For complaint (4), in arriving at its conclusion, the Board was entitled to rely on COI which were mainly sourced from country reports issued by various governments including the Bangladesh government (§32(i) – (viii)) to reach the view that sufficient state protection was generally available in Bangladesh notwithstanding shortcomings such as corruption (§§33, 71). The new reports cited in §32(ix) of the Board’s Decision were merely corroborative with the government sources. In any event, there is no evidence in the contrary to show the Board’s conclusion in this aspect was irrational.

11.  In short, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.  Accordingly, I refuse to grant leave for judicial review.

Conclusion

12.  In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1