SARKER SHAJAHAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 3394/2019

[2025] HKCFI 3536

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3394 OF 2019

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 1 November 2019”.

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

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 15 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 1 November 2019 without identifying the decision maker. However, a copy of the decision of the Torture Claims Appeal Board (“the Board”) dated 1 November 2019 (“the Board’s Decision”) was annexed to his supporting affirmation dated 15 November 2019. It is clear that the applicant must be referring to the Board’s Decision in the Leave Application. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003394_2019_files/the_Board's_Decision.pdf

2.  The Board decided that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”), and confirmed the decision of the Director of Immigration (“the Director”) dated 11 December 2018 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.

Amendments

3.  In Form 86, the applicant named “USM” as the putative respondent and “T.C.A.B” as the putative interested party, when the Board should be named as the putative respondent and the Director should be named as the putative interested party.

4.  This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

5.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision. Thus, on this court’s own motion, the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 1 November 2019”.

The applicant’s case

6.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

7.  In sum, the applicant claimed for non-refoulement protection because he feared harm from the then ruling party in Bangladesh, ie the Awami League (“AL”), as he was a member and the General-Secretary of Brahmanbaria District branch of the Jamaat Islam Party (“JIP”) and thus became a victim of revenge. He was also falsely accused of murder.

Oral hearing

8.  The applicant requested for an oral hearing of the Leave Application, and his case was heard on 26 June 2025.

9.  When this court asked the applicant to give the grounds for his intended judicial review, apart from reiterating that his life was not safe in his own country and he wanted this court to reconsider his case, the applicant had nothing further to say.

Grounds for judicial review

10.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

11.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 15 November 2019.

12.  As aforesaid, the applicant also failed to advance any ground for the intended judicial review at the oral hearing.

Discussion

13.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

14.  Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

15.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 23 September 2019 and the applicant was present. The Board questioned the applicant for details of his claims but found that the applicant was not a witness of truth and that he had fabricated his claims in relation to his involvement with JIP and the resulting history of harm.

16.  As can be seen from the Board’s Decision, the Board gave very detailed analysis and reasoning in rejecting the applicant’s claims, both individually and cumulatively, in their entirety.

17.  The Board expressly found that:-

(1)  the applicant was never a member of JIP;

(2)  he was not involved in political activities and gatherings;

(3)  he was not attacked by the authorities or AL in the period from May 2014 to February 2015;

(4)  his shop was not attacked and his manager was not killed;

(5)  he did not have to go into hiding in Bangladesh or flee his country;

(6)  his wife and children moved to live with his in-laws for personal reasons, not in order to escape harm;

(7)  he was not a wanted person and there were no criminal charges or convictions against him in Bangladesh; and

(8)  he was not of any adverse interest to anyone in Bangladesh.

18.  In light of its findings, the Board concluded that there was not a real risk the applicant would face any of the proscribed forms of harm should he return to Bangladesh. Thus, the Board confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.

19.  The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it is therefore not necessary for the Board to consider the availability of state protection.

20.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

21.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

22.  The assessment of evidence, country of origin information and risk of harm was primarily within the realm of the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

23.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

24.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

25.  For reasons aforesaid, the Leave Application 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