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HCAL 3069/2019
[2025] HKCFI 3456
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3069 of 2019
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Md Miah |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 8 October 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.
2. The applicant asked for a hearing. He appeared before the Court on 4 July 2025.
The applicant
3. The applicant, aged 55, is a national of Bangladesh. He had entered Hong Kong and repatriated several times previously. The last time he came to Hong Kong illegally was in January 2007. He was arrested and raised a torture claim, which the Director rejected. His petition was dismissed by the then Petition Team of Security Bureau on 17 January 2012. He raised his non-refoulement claim on the basis that, if refouled, he will be harmed or killed by the people of Kabul from the Awami League (“AL”), the police and the Rapid Action Battalion (“RAB”) in his area (“his enemies”) because they thought that he was involved in Kabul’s death.
4. According to the applicant, he was a supporter of Bangladesh Nationalist Party (“BNP”). His friends were involved in a murder case of a member of the Awami League (“AL”), Kabul. His enemies believed that he was involved in the murder of Kabul. Police went to his family house to look for him. He had to move to live elsewhere in order to avoid them. On 10 November 2005, he came to Hong Kong as a visitor and he overstayed.
5. Detail of his story can be found in paragraph 9 of the Notice of Decision dated 12 September 2019 (“the Director’s Decision”).
The Director’s Decision
6. The Director considered the applicant’s claim in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
7. By way of the Director’s Decision, the Director dismissed the applicant’s claim because his claim was unsubstantiated and his alleged risks would be alleviated or negated by state protection and internal relocation.
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 8 April 2019, the Board conducted an oral hearing for his appeal.
9. Having considered the evidence, the Board dismissed his appeal for the reasons below.
(1) After carefully assessing his evidence, the Board found his account not to be credible and reliable. [100]
(2) He had failed to make a full and prompt disclosure of material facts. [101]-[107]
(3) There were material inconsistencies in his account over time. [108]-[123]
(4) Overall, the Board found his evidence vague, lacking in appropriate detail and opportunistic, rather than a genuine effort to provide a straightforward and reasonably detailed account of his real life experience. [132]
(5) The Board refused to accept that his evidence was credible. [136] See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003069_2019_files/the_Board's_Decision.pdf.
Application for leave to apply for judicial review of the Board’s Decision
10. The applicant has filed Form 86 dated 17 October 2019 for leave to apply for judicial review of the Board’s Decision.
11. In his affirmation in support of his application, the applicant raised the grounds below.
(1) He was not legally represented.
(2) The bundle of documents was sent to him near the appeal hearing, and he did not understand the papers in English, and yet, he did not have interpretation service. So he was confused at the hearing, though he had answered all the questions put to him.
(3) The Board had relied on the source of news which is not officially recognized or it is simply hearsay. Some cases are outdated. All these make the Board speculate that if is safe for him to return to his country.
(4) The Director’s and the Board’s decisions are wrong as they had not been to his country to understand the real situation there.
DISCUSSION
12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, upon being asked if he considered that the Board was wrong, he said that the Board might not be wrong. However, the Board’s Decision had to be re-considered.
14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13. (1) … …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.”
15. The grounds under paragraph 11 will not advance his application. He was not entitled to free legal assistance at all stages of the proceedings[1]. He was also not entitled to free interpretation service at all stages of the proceedings[2]. Late delivery of the hearing bundle seems had no effect on the appeal as he was able to answer all questions form the Board. The Board does not have to go to his country to understand the situation as it may rely on the country of origin information. Ground (3) is only his bare assertion without any evidence in support.
16. The applicant has raised no valid ground to challenge the Board’s Decision.
17. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.
DISPOSITION
18. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
Dated the 2nd day of September 2025
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(M.O. WONG)(Ms)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 2/9/2025
Md Miah
Applicant’s ref. no:
Nil
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 2/9/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
13558/18/9/319/B1552
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3001/18 (formerly RBCZ/2000144/14)(T8S21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Re Ahmed Syed Rafiq [2018] HKCA 178, Hon Lam & Chu JA, 26 March 2018, held:
“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”
[2] The Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, held:
“16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.”
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