MAHAMMAD IBRAHIM KHALIL v. TORTURE CLAIMS APPEAL BOARD

HCAL 301/2020

[2025] HKCFI 1682

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 301 OF 2020

  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” and the name of the putative interested party be amended to “Director of Immigration”.

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 4 March 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 24 January 2020 (“the Board's Decision”). The Board’s Decision can be viewed in the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000301_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant did not face any of the risks under the Unified Screening Mechanism (“the USM”) if he was refouled to Bangladesh and returned to his local area, and if that was wrong, he could avoid such risk or risks by internal relocation within Bangladesh. Hence, the Board dismissed the applicant’s appeal and confirmed the decision of the Director of Immigration (“the Director”) dated 27 August 2018, which refused the applicant’s claim for non-refoulement protection.

Amendments

3.  In Form 86, the name of the putative respondent was misspelt. The applicant also wrongly named himself as the putative interested party. 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”.

The applicant’s case

4.  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.

5.  In sum, the applicant claimed for non-refoulement protection because he was a supporter of the Jamaat-e-Islam (“JEI”) party in Bangladesh and was at risk of death, torture or cruel, inhuman or degrading treatment or punishment and/or persecution by the ruling Awami League party if he were to return to Bangladesh.

Oral hearing

6.  The applicant requested for an oral hearing and his case was heard on 17 April 2025.

7.  At the hearing, the applicant said that he had submitted everything to the court and he had nothing to add.

Grounds for judicial review

8.  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).

9.  However, the applicant did not advance any ground for the intended judicial review in Form 86 nor in his supporting affirmation dated 4 March 2020.

Discussion

10.  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).

11.  In assessing the applicant’s appeal, the Board held an oral hearing on 21 November 2019. In view of the inconsistencies in the applicant’s evidence on various points, the Board did not accept the applicant’s case as credible, in particular he told the Board that he was a JEI member but he previously claimed to be a member of the Bangladesh Nationalist Party (“BNP”). On the evidence, the Board was not satisfied that the applicant was a member of either JEI or BNP. Thus, the Board found that there were no substantial grounds for believing that he would be subjected to torture if he were to be sent back to Bangladesh. Moreover, internal relocation was viable for the applicant.

12.  The finding of facts is within the sole ambit of the Board. This court finds no errors of the Board in reaching its decision based on all the evidence before it.

13.  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 error 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.

14.  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 a reasonably arguable claim which enjoyed 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

15.  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