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

HCAL 2529/2019

[2025] HKCFI 1867

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2529 of 2019

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

Following:

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

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Md Jakir (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 22 August 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 7 November 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“NRC”).

Background of the Applicant and the Claim

2.  The Applicant is a Bangladeshi born on 7 January 1980 in District Patuakhali, Bangladesh. He had received 10 years of education and had 6 years of working experience as owner of a garment shop and a teashop.

3.  The Applicant claimed that his creditors in Bangladesh would harm or kill him because of outstanding debts. He claimed that he borrowed 500,000 Taka from two lending associations (JKA and MKA) in mid-1999 at 7% monthly interest rate (“1^st Loan”).

4.  The Applicant used the 1^st Loan for his garment business. He was unable to make interest payment on the 1^st Loan when his garment business started failing in around 2001. In March 2002, the Applicant was attacked by 5 people sent by JKA and MKA. He was seriously injured and had to be hospitalized.

5.  He borrowed 200,000 Taka (“2^nd Loan” and together with the 1^st Loan referred to as “Loans”) from another lending association (SS) in July 2002. He planned to use half of the 2^nd Loan “for repayment” and the remaining amount for his business. However, the entire sum of the 2^nd Loan was stolen during his bus journey to Dhaka.

6.  The Applicant was attacked again in early 2003 by 5 or 6 people sent by JKA and MKA. He was again seriously injured and had to be hospitalized.

7.  The Applicant managed to operate a teashop peacefully for around two years in Dhaka, which was about 8 or 10 hours away from his home by bus.

8.  However, in late 2005, he was seen by a member of the JKA (“X”) in Dhaka and was later taken away from his teashop by about a dozen people to X’s house. They threatened to kill the Applicant but eventually gave him one month’s time to pay back the outstanding.

9.  The Applicant did not seek police assistance because he felt guilty from not being able to repay.

10.  The Applicant knew that he could not pay back the Loans. Thus, he fled to Mogbazar to stay with his ex-classmate. He managed to stay there peacefully for about 2.5 months. His friend later advised him to come to Hong Kong, so he left Bangladesh via the official channel on 17 April 2006 for Mainland China and later came to Hong Kong on 28 April 2006 as a visitor.

11.  The Applicant was permitted to stay in Hong Kong until 12 May 2006. He failed to leave and overstayed in Hong Kong since 13 May 2006. On 3 March 2010, he surrendered to the Immigration Department and made a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT Claim”).

12.  The CAT Claim was rejected by the Director on 15 September 2010 and his petition against that decision by the Director was rejected by the Board on 19 October 2010. The CAT Claim was thus concluded.

13.  The Applicant made another non-refoulement claim on 20 September 2014 (i.e. the NRC). The Director assessed the NRC on the following grounds under the unified screening mechanism (“USM”):

(a)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR” and “BOR 2 risk”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(c)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“Refugees Convention” and “persecution risk”).

14.  By the DOI Decision, the Director refused the NRC. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

15.  On 30 August 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. In the Form 86, he identified the Board’s Decision by reference to the hearing date before the Board (i.e. 27 May 2019).

16.  In the Form 86, the Applicant did not name any proposed respondent but in his supporting affirmation filed on the same day (“Supporting Affirmation”), he named the Board as a party to his application. He also exhibited to the Supporting Affirmation the Board’s Decision and the hearing bundle for the hearing before the Board. As such, it is clear that the Applicant intended to seek judicial review of the Board’s Decision in this application. The Applicant attended the court hearing of 20 March 2025 (“Court Hearing”) and confirmed the same to the court. I proceed with this application on such basis.

Legal principles applicable to judicial review

17.  In a judicial review, the court does not step into the shoes of the decision makers.

18.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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 Board: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

19.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

20.  In the Form 86, the Applicant did not put forward any ground for his intended judicial review.

21.  In the Supporting Affirmation, the Applicant exhibited the Board’s Decision and the hearing bundle before the Board but did not put forward any ground for his intended judicial review.

22.  The Applicant testified at the hearing before the Board. The Board was of the view that when the Applicant’s evidence was assessed in its totality, multiple significant anomalies were evident which led to the Board concluding that central aspects of the Applicant’s circumstances were not as he had claimed. (§28 of the Board’s Decision)

23.  In §§30-51 of the Board’s Decision, the Board discussed in some details the evidence given by the Applicant at the hearing before the Board. The Board found his testimony to be inconsistent with his statements to the Director.

24.  The Board did not accept that the Applicant had the debts claimed or he was ever targeted for harm or actually harmed as he had claimed in respect of those claimed debts, or for any other reasons. The Board also did not accept that the Applicant faced a real risk of harm of any type in Bangladesh in connection with those claimed debts. (§54 of the Board’s Decision)

25.  As pointed out in the Nupur Mst (supra) case, assessment of evidence, country of origin information materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board. The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.

26.  At the Court Hearing, the Applicant was unable to identify any errors of law, procedural unfairness or irrationality in the Board’s Decision.

27.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way the Board’s Decision was unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

28.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the relevant grounds for seeking non-refoulement protection; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

29.  The Board did not accept that the Applicant faced a real chance of harm of any type in Bangladesh for any of the reasons claimed should he return there.

30.  In §§56-67 of the Board’s Decision, the Board considered the Applicant’s claims under each of the BOR 3 risk, the BOR 2 risk and the persecution risk.

31.  The Board found that there were no substantial or strong grounds for believing that there was a real risk that the Applicant would be subjected to the BOR 3 risk in Bangladesh. The Board was not satisfied that the Applicant would suffer the death penalty, arbitrary deprivation of life or genocide in violation of BOR 2 in Bangladesh. The Board was also not satisfied that the Applicant had a well-founded fear of persecution for any of the reasons referred to in Article 33 of the Refugees Convention if he were removed to Bangladesh.

32.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection. These were findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings for the NRC. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

33.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the NRC, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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