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

HCAL 1557/2020

[2025] HKCFI 4813

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1557 of 2020

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

Following;

1.  Form 86 be amended, naming the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 23 July 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 14 July 2020 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 21 April 2020.

2.  I amend the Form 86 on my own motion to name the DOI as the putative interested party.

3.  The Applicant requested for a hearing of this application and he attended the same. He handed up a 4-page document (the contents of which I have fully considered) and confirmed that he had nothing else to add.

Background

4.  The Applicant is a national of Bangladesh. He seeks non-refoulement protection on the basis that his life would be in danger if he is to go back. The Applicant contends that he was a member and supporter of the Bangladesh Nationalist Party (“BNP”), and he became the campaign secretary of its youth wing in Demra in 2011. His duty was to design and distribute promotional materials like banners and leaflets. After the Awami League (“AL”) won the general election in 2014, they retaliated against the BNP supporters. False charges were laid against the Applicant and the local police was looking for him. He left for Malaysia in 2015 and he continued to learn from his family that the police was still looking for him. He had to return to Bangladesh in 2017 when his visa expired. In 2018 he was campaigning for BNP for another general election and organised a meeting. There was an armed attack from AL supporters and the Applicant was injured. AL won that general election and the leader of AL in the Applicant’s area called the Applicant and threatened to kill him. Another attack incident took place some time later when the Applicant was in another city. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them.

Discussion

5.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

6.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and this court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.  The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86. He however stated in his affirmation that the TCAB disregarded the threats and dangers that he would face in his country and did so “without any proper inquiry and without carefully understanding” the Applicant’s situation. In his written document, the Applicant stated that the danger still exists, the political persecution still continues, and apparently his elder brother lost one of his legs in a protest against the government.

9.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [15-17] and found that on the basis of the same, applying also the correct legal principles in respect of all four applicable grounds [5-14] and properly considering the Country of Origin Information [18-28], the Applicant’s allegations were insufficient to make out any of the applicable grounds [29-48].

10.  Further, the TCAB also concluded that internal relocation was viable on the basis of the available evidence [49-57].

11.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is 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