AHAMED MOHAMMAD SHAMIM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1282/2021

[2026] HKCFI 235

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1282 of 2021

  Application for Leave to Apply for Judicial Review

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

Following;

1.  The Applicant’s Form 86 be amended to name the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office’s Decision dated 25 August 2021 as the decision sought to be reviewed, the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office as putative respondent and the Director of Immigration as putative interested party; and

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

Observations for the Applicant:

1.  By a Form 86 filed on 13 September 2021 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board (“TCAB”) and the Director of Immigration (“DI”) dated 17 February 2021.  

2.  A copy of the decision of the Applicant’s case made by the TCAB, the member of which also sat as an adjudicator of the Non-Refoulement Claims Petition Office (“NRCPO”), is exhibited to the Applicant’s supporting affirmation.  According to it, the TCAB/NRCPO decided the Applicant’s case on 25 August 2021 (“the TCAB/NRCPO Decision”).  17 February 2021 was instead the date of the DI’s tier-1 decision of the Applicant’s case, which has since been superseded by the TCAB/NRCPO Decision. 

3.  In the oral hearing of this application, the Applicant agreed to amend the Form 86 to name the TCAB/NRCPO Decision dated 25 August 2021 as the decision sought to be reviewed.  On my own motion, I made such amendment, and additionally name TCAB/NRCPO as the proper putative respondent and the DI as a putative interested party (instead of a putative respondent).  

4.  The Applicant is a Bangladeshi national.  His non-refoulement claim was based on an alleged risk of being harmed or killed by the people of a political party called Purbo Banglar Communist Party (“PBCP”) because he left that party in February 2016 and refused to re-join it thereafter.

5.  After an oral hearing, the TCAB/NRCPO came to the finding that the Applicant was not subject to any real risk of being harmed, killed, tortured or violated his fundamental human rights; neither was he under any well-founded fear of being persecuted so that he had to stay outside Bangladesh.  In coming to this finding, the TCAB/NRCPO assessed the Applicant’s factual assertions to be incredible.

6.  One factor the TCAB/NRCPO took into account was the Applicant’s movement history, particularly a stay in Malaysia from August 2016 to July 2018 without making any claim for non-refoulement protection (paragraph 20 of the TCAB/NRCPO Decision).  I must say I am troubled by this factor because, apparently, Malaysia has never ratified the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) and the International Covenant on Civil and Political Rights (“ICCPR”); neither is it a signatory to the 1951 Convention Relating to the Status of Refugees (“RC”). 

7.  Section 37ZD(1)(b) of the Immigration Ordinance (Cap. 115) provides that the TCAB may take into account (as damaging the credibility of a claimant) the behaviour of failing to take advantage of a reasonable opportunity to claim non‑refoulement protection in respect of a torture risk State (i.e. Bangladesh in this case) while in a place outside Hong Kong to which the CAT applies (other than a torture risk State).  Malaysia is apparently not such a “place outside Hong Kong to which [the CAT] applies”. Paragraph 17.1(b) of the 2019 and 2021 versions of the Petition Guide contained/contains a similar provision concerning the failure to seek protection in a place outside Hong Kong to which the RC or the ICCPR applies, which should be the guidance for an NRCPO adjudicator.  If Malaysia is not a place in which the CAT, ICCPR or RC has been ratified and applied, arguably the relevant statutory provision or policy guidance did not enable the TCAB/NRCPO of this case to take into account the Malaysian factor as damaging the Applicant’s credibility.

8.  But adopting a bird’s eye view over the TCAB/NRCPO Decision, I am satisfied that the Malaysian factor was only one factor and did not materially affect the outcome of the TCAB/NRCPO Decision.  First, the TCAB/NRCPO took into account other credibility factors, which I do not find to be erroneous on their face (see paragraphs 19-21 of its decision).  Secondly, on the specific assessment of each applicable ground, the TCAB/NRCPO did consider the alternative situation of assuming its credibility assessment was wrong.  Factors including the Applicant’s return to Bangladesh in 2018 after the Malaysian stay, the low intensity of PBCP’s bothering of him and PBCP’s status as a non-political organization (based on country information) were taken into account.  In other words, the TCAB/NRCPO assessed that even if the Applicant’s version were completely believed, the Applicant had still failed to present a reasonable case over the low standard required to substantiate a real and substantial risk of ill-treatment under each applicable ground.  I am unable to say that the TCAB/NRCPO Decision was flawed on those bases.  I am satisfied that, without the Malaysian factor, the TCAB/NRCPO would have been bound to arrive at the same conclusion; it was inevitable.

9.  I also take note that, in the tier-1 decision of the DI (at paragraph 14), the DI referred to authoritative country information that the United Nation High Commissioner for Refugees (“UNHCR”) generally had access to registered refugees and asylum seekers etc. in Malaysia, and the Malaysian Government generally co‑operated with the UNHCR.  A country may not have formally ratified and applied the aforesaid Conventions, but it may have in practice observed customary international law or other legal principles concerning non-refoulement protection.  Where a non-refoulement claimant in Hong Kong has stayed in such a country for substantial time before coming to Hong Kong without making any claim there, can TCAB/NRCPO make adverse credibility on that basis? In view of my finding in paragraph 8 above, and the lack of focused argument on this point in the tier-2 process before the TCAB/NRCPO of this case, I believe this is not a suitable case to consider the issue and it should be left for future.  Suffice it to mention that, on one view, s.37ZD(1)(b) of the Ordinance (and paragraph 17.1(b) of the Petition Guide) is only permissive.  It is not a must that an adverse credibility finding, based on a failure to seek protection in a State which grants de facto but not de jure non-refoulement protection, is prohibited.  The resolution of such a point will certainly require proper legal submissions.  In any event, it is not necessary to resolve it in this case.    

10.  The Applicant has brought out no ground of judicial review against the TCAB/NRCPO Decision.  In the absence of any errors of law (the correction of which would potentially lead to a different outcome), procedural unfairness or irrationality, the Court would not reopen the TCAB/NRCPO’s findings or make a determination on the case afresh.  The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).  Other than the point I specifically addressed above, I have also reviewed the TCAB/NRCPO Decision in its entirety, vigorously.  However, I do not find it reasonably arguable that the decision should be quashed.  This leave application is thus 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

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