BIPLOB MIAH alias MD BIPLOB MIAH alias HOSSAIN ALAMGIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2233/2020

[2025] HKCFI 5501

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2233 of 2020

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

Following:

1.  The Form 86 be amended on the court’s own motion.

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

Observations for the Applicant:

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 6 November 2020, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 9 October 2020 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 18 December 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds except  the risk torture ground which had been previously dismissed by the Director on 24 August 2012. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002233_2020_files/the_Board's_Decision.pdf

2.  In the Form 86, the applicant named the Board and the Immigration Department as the proposed respondents as well as the interested parties. As the Board should have been the proper proposed respondent and the Director the interested party, the Form 86 will be amended accordingly on the court’s own motion.

3.  The basis of the applicant’s claim was that, if refouled to Bangladesh, he would be harmed or killed by the loan sharks with political background for the unpaid loans.  The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 9 September 2025.  The applicant attended the hearing in person.  After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

5.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.  The Form 86 and the supporting contained no such grounds at all.

7.  At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application. The applicant said that his counsel had told the Board that he had medical problems. He would have more medical appointments for his heart problem in September and December 2025.

8.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3] In the present case, the applicant was represented by a counsel assigned by the Duty Lawyer Service. The Board found that the applicant was not a credible or reliable witness. The Board found that the applicant’s evidence regarding the loans were not credible and did not therefore find that the applicant would be at risk of harm. In any event, the Board found that the alleged past ill-treatment in the form of one slap the applicant received had failed to attain the requisite minimum level of severity. The Board further found that both state protection and internal relocation were reasonably available. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

9.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness.  I am satisfied that the Board was entitled to reach the conclusion that the applicant would unlikely face risk of harm after having rejected the centerpiece of the applicant’s evidence.  The applicant has not provided any valid grounds, whether written or oral, in support of the Leave Application. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Orders

10.  The Form 86 be amended on the court’s own motion.

11.  The applicant’s 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