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

HCAL 2832/2019

[2025] HKCFI 3822

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2832 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a “Notice of application to apply for leave for judicial review” in the prescribed Form 86 filed on 26 September 2019, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 20 September 2019 (“Board’s Decision”) dismissing the applicant's appeal against the decisions of the Director of Immigration (“Director”) dated 19 May 2016 and 5 July 2017 (“Director’s Decisions”) rejecting the applicant's non-refoulement claim.

2.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 3 June 2025.  The applicant attended the hearing in person.  After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Background

3.  The background as taken from the Director’s Decision and the Board’s Decision can be briefly stated as follows.

4.  The applicant is a national of Bangladesh.  On 14 September 2013, he was arrested by police for being a suspected illegal immigrant and was referred to the Immigration Department on 15 September 2013.  The applicant lodged his non-refoulement claim on 16 September 2013.  The Director treated the claim as having been withdrawn on 3 September 2015 due to the applicant’s failure to return the completed non-refoulement claim form within a specific time limit. By letter of 13 October 2015, the applicant requested the reopening the non-refoulement claim.  On 6 November 2015, the Director informed the applicant of its decision to reopen the non-refoulement claim.

5.  The applicant’s claim was considered under all applicable grounds i.e. risk of torture^[1], BOR 2 risk^[2], BOR 3 risk^[3] and persecution risk^[4] under the USM.^[5]  The claim was based on a fear that if refouled, he would be harmed or killed by members and/or supporters of the Awami League (“AL”) due to his support for the rival Bangladesh Jamaat-e-Islami (“JeI”)[6] and refusal to join.

6.  According to the applicant, in 2008 he joined Islami Chhatra Shibir, which is the student wing of JeI.  In around 2010, while at Chandpur Bazar, he was confronted by a group of 5 or 6 AL members, who surrounded and shoved him, and demanded that he join the AL.  Subsequently, in around February or March 2012, the applicant’s friends informed him that they overheard from conversations of the AL members that AL would take action to prevent him from joining JeI activities and rallies, by using force if necessary.  The applicant decided to report these threats to the police.  However, the police officers were unwilling to take up the case.  He also got no help from the member of the JeI village committee about these threats that he had reported, or from his paternal uncle who was a member of the Bangladesh Nationalist Party.

7.  Thus, the applicant decided to flee his village.  In around June or July 2012, he travelled to Dhaka where he stayed temporarily with his cousin Sayeed, and worked as a cleaner at a garment factory.  He did not inform anyone of his whereabouts.  While in Dhaka, it was a time of rivalry among political parties. Street violence was common, and he heard numerous bomb attacks, explosions, and police shootings.

8.  Around the beginning of 2013, the applicant returned to his village to prepare to permanently leave the country.  He departed from Bangladesh in March 2013.

9.  In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds.  Hence, the applicant’s appeal to the Board against the Director’s Decision.

10.  On 7 August 2019, the applicant attended a hearing before the Board.  At the Board hearing, the applicant gave oral testimony and answered questions from the Board. 

11.  The Board rejected the applicant’s centrepiece of claim on the basis of his past political activity. The Board found that the applicant was no more than a grassroots level member and supporter of the JeI, and that there was no evidence knowing that he was seen or would be seen as a threat to the state.  Moreover, by the time of the Board’s Decision, the JeI hardly existed as a political party or force.  Thus, the Board found that there would be no real risk of harm.  The Board also concluded that there was no evidence that the state was unwilling or unable to afford protection to the applicant. The Board also found that internal relocation would be viable.  Thus, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

12.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

13.  The applicant’s Form 86 did not contain any grounds for seeking relief. At the hearing, the court asked him whether he had anything to say.  The applicant asked for his case to be considered carefully.  He said that the situation in his country was not good.  He stated that 5 August 2024, around 300 police had been killed by students and the police stations had been burned.

14.  It is plain that in neither the applicant’s submissions nor the Form 86 was the applicant able to specify on what basis the Board was said to have acted unlawfully or procedurally unfair in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  The court is not in a position to assess the alleged events the applicant stated in the hearing.

15.  After having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness.  I am satisfied that there were no errors of law or procedural unfairness or irrationality in the Board’s Decision. 

16.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Order

17.  The applicant’s application for leave to apply for judicial review 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