ISLAM MD SADEKUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 445/2020

[2025] HKCFI 3057

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 445 of 2020

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;

1.   The Form 86 be amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent and naming only the Director of Immigration as the Putative Interested Party; and

2.   Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Bangladesh. By a Form 86 dated and filed on 18 March 2020 (“Form 86”), the Applicant sought leave to commence a judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on 24 February 2020 (“The TCAB Decision”)[1] rejecting the Applicant’s claim for non-refoulement relief on the basis of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5], and the “Notice of Decision issued by Immigration Department dated 24/02/20 (Immigration Decision)”.

2.  The Form 86 is also accompanied by a supporting affirmation also dated and filed on 12 March 2020 (“the Affirmation”), in which says he applies against the decision of the Director of Immigration (“The Director”) and the TCAB for 3 reasons, which I set out and discuss below.

3.  While no documents are exhibited to the Affirmation, the Director did make a decision dated 16 August 2019 (“the Director’s Decision”) rejecting the Applicant’s claim for non-refoulement relief on the same four bases of Torture Risk, BOR 2 Risk, BOR 3 Risk, and Persecution Risk, which the Applicant then appealed/petitioned via a Notice of Appeal/Petition (“Notice of Appeal”) to the TCAB/NRCPO, resulting in the TCAB Decision.

4.  As the Applicant did not seek an oral hearing of his leave application, I have proceeded to deal with such on the papers.

5.  Given the above I hence do not see that the Applicant was clearly seeking leave to commence a judicial review of the Director’s Decision. However, if and insofar as he may be taken as seeking such leave before me, that application would stand only to be rejected, and I do so. Such an application is misconceived given both the existence and implications of the two-tier system and the lack of exceptional circumstances justifying such an application (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310).

6.  I have therefore amended the Form 86 of my own motion as set out above.

Background

7.  The TCAB Decision sets out the Applicant’s background, general nature of his case as to his claim for non-refoulement relief, and the immigration and procedural history leading up to the TCAB Decision (Paragraphs 1 to 19). I will not repeat them but, in essence and for present purposes:

a.  The Applicant’s claim for non-refoulement relief in relation to the present proceedings is premised on, and stems from the apparent risk that he will be killed by members of the Awami League (“AL”), a Bangladeshi political party; and

b.  The Applicant’s claim for non-refoulement was originally made by his written representation (“Written Representation”) in which he claimed membership of the “Bangladesh Islami Chatra Shibir”. In his Non-Refoulement Claim Form (“NCF”) he said he feared ill-treatment from AL because he was a member of the Jamaat-e-Islami (“JeI”) and blamed the interpreter for the reference to the “Bangladesh Islami Chatra Shibir” in the Written Representation. In his Notice of Appeal, he wrote that he and his family were JeI supporters and that the AL people wanted to kill him.

c.  The TCAB/NRCPO held an oral hearing attended by the Applicant on 4 November 2019 at which he appeared with the benefit of interpretation and gave evidence, including answering questions from the TCAB/NRCPO (see also Footnote 13 and Paragraphs 25 to 33 of the TCAB Decision).

8.  As mentioned, the Affirmation contains 3 grounds for judicial review, which I will deal with below.

Legal Principles

9.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86 (Ho Loy & Another v Director of Environmental Protection, (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142).

10.  It is trite that judicial review is not a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the 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/NRCPO (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

11.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA14, at §23).

Discussion

12.  The Applicant has mentioned 3 grounds of judicial review:

a.  “INFORMATION PROVIDED WAS BIASED AND IRRELEVANT” (“Ground 1”);

b.  “FAILED TO DETERMINED(sic) MY THREAT UPON MY RETURN TO MY NATIVE COUNTRY” (“Ground 2”)

c.  “JUDGMENT BASED ON INFORMATION PROVIDED WAS NEGLECTED” (“Ground 3”)

13.  As to Ground 1, there is no attempt to by him to refer to what specific “information provided” is said to be “biased and irrelevant”.

14.  As to Ground 3, I consider that it amounts (insofar as it can be understood) to a complaint that the TCAB Decision neglected to consider certain “information provided” to it. However, and as with Ground 1, there is no attempt by the Applicant to identify what is the relevant “information provided” and how that was “neglected”.

15.  If Ground 2 is construed as a complaint that the TCAB/NRCPO did not in the TCAB Decision, consider the question of whether a threat existed upon refoulement, that is clearly not reasonably arguable since the TCAB Decision (for reasons analysed below) clearly determined that there was no such threat to the Applicant as claimed by him.

16.  If Ground 2 is treated as an allegation that the TCAB Decision erred in its conclusion as to the existence, and level, of such a threat, then given the nature of judicial review, such a complaint would have to be based on procedural unfairness, error of law, and/or any irrationality/failure to meet the enhanced Wednesbury test. However, the Applicant has not identified which (if any) of these are alleged in support of Ground 2, save at best via the vague and unspecific allegations made via Grounds 1 and 3.

17.  Nevertheless, given the seriousness of the issues at hand I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness. In doing so, I have borne in mind Grounds 1 to 3 as mentioned by the Applicant.

18.  Further to my summary of the TCAB Decision above, I note that the TCAB Decision sets out, in some detail, the basis of the Applicant’s claim as made prior to the oral hearing, including as advanced via the Written Representation and the NCF (Paragraphs 2 to 4, 9 to 19).  It also correctly sets out the relevant and applicable law and procedure relating to the determination by the TCAB/NRCPO, including reference to the high standard of fairness and the pro-active approach to be taken, as well as the relevant burden and standard of proof and the approach to be taken in relation to the evidence and evaluating the risk of harm (Paragraphs 5, 20 to 24).

19.  The TCAB/NRCPO then went on to summarise and set out the Applicant’s verbal account at the hearing before it (Paragraphs 25 to 33). This was followed by a section on fact finding and risk assessment wherein the TCAB/NRCPO held (giving in my view adequate reasons referring to the evidence, and relevant and apparently credible COI for doing so) that while it would ignore some discrepancies, given other specified “conflicting, incongruent and illogical accounts about his core contentions relating to his father’s JeI association and his own JeI affiliation”, it was not accepted that there was “any probable truth in the Applicant’s contended version of being a JeI member or supporter, or [that he] had been attacked by the AL members for his affiliation with JeI.”  The TCAB/NRCPO also refused to accept that there was any probable truth in his account (as made in his NCF) that the Applicant was the subject of any charge of damage to public vehicles (Paragraphs 34 to 51).

20.  This was followed by sections on Persecution risk, BOR 2 Risk, BOR 3 Risk, and Torture Risk. In each section, references were made to the law and legal approach to be applied, and the TCAB/NRCPO held (as it was entitled to) that each type of risk was not established as it had (being an obvious reference to its conclusions above) not found that there was a reasonably credible account of events to suggest that the Applicant is or was a JeI member/supporter, and did not accept his contention that he had been attacked by the AL members or supporters or targeted for attack for his JeI association (Paragraphs 52 to 64). The TCAB/NRCPO hence dismissed the Applicant’s appeal/petition and confirmed the Director’s Decision (Paragraph 65).

21.  I do not, from my aforesaid examination and scrutiny, see that it is reasonably arguable that there was procedural unfairness (bearing in mind the need for a high standard of fairness)[6], an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test vitiating the TCAB Decision. This is especially so as to the assessment, reasoning, and findings relating to the facts underlying the Applicant’s claim, and consequently Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk, which are all matters primarily within the province of the decision-making body, and as to which adequate reasons were given.

22.  Given the above, I am not satisfied that there are any reasonably arguable grounds for judicial review, including those formulated as Grounds 1 to 3, which enjoy a realistic prospect of success.

Conclusion

23.  In the circumstances, I have ordered that the Form 86 be amended as described above, and that the 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