TUSHAR SIKDER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2836/2019

[2025] HKCFI 3859

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2836 of 2019

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;

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 26 September 2019, 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 19 September 2019 (“Board’s Decision”) dismissing the applicant's appeal against the decisions of the Director of Immigration (“Director”) dated 16 December 2016 and 25 July 2017 (“Director’s Decisions”) rejecting the applicant's non-refoulement claim.

2.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 5 June 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.

Background

3.  The background as taken from the Director’s Decision and the Board’s Decision can be briefly stated as follows.

4.  The applicant is a national of Bangladesh.  On 22 November 2006, he departed Bangladesh for Kunming, China.  He arrived at the Lo Wu Control Point on 10 December 2006 but was refused entry to Hong Kong and was removed to Shenzhen.  On 27 May 2007, he was arrested by police for illegal remaining, and was referred to the Immigration Department for further investigation on 28 May 2007.  The applicant lodged a torture claim on 8 July 2008, which claim was considered as one of the grounds of his non-refoulement claim

5.  The applicant’s claim was considered under all applicable grounds i.e. risk of torture^[1], BOR 2 risk^[2], BOR 3 risk^[3] and persecution risk^[4] under the USM.^[5]  The claim was based on a fear that if refouled, he would be harmed or killed by the Bangladesh Nationalist Party (“BNP”)   after he had disassociated from the party and because he knew so much about BNP’s illegal and secret activities. He further feared that if he would be harmed or killed by the current government, which was led by the Awami League (“AL”) party because of the applicant’s former work for BNP.

6.  According to the applicant, he became a support of BNP when he was 17 years old, and became involved in its illegal activities. He was attacked twice by the members of the AL party when he ignored the latter’s requests to work for the AL instead of for BNP. The second attack was around 2006, when he was attacked by 7 to 8 men armed with wooden sticks and iron rods. The applicant managed to escape from the attackers.

7.  In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds.  Hence, the applicant’s appeal to the Board against the Director’s Decision.

8.  On 20 March and 8 June 2018, the applicant attended a hearing before the Board.  The applicant was represented by counsel and the Director was represented by Senior Government Counsel.  At the Board hearing, the applicant gave oral testimony and answered questions from the Board, as well as from Senior Government Counsel and the applicant’s own counsel.  

9.  In assessing the applicant’s credibility, the Board had taken account of (i) the psychological reports in relation to the applicant’s mental and physical health, showing that the applicant was diagnosed of having suffered severe Post-traumatic Stress Disorder (“PTSD”) with dissociative symptoms; and (ii) his medical appointment and discharge slips from the government hospitals. It found that the applicant was not credible due to inconsistencies and gaps throughout his evidence, as well as his evasive answers to the Board’s questions. His evidence was found to be vague, fanciful, unrealistic, and improbable and lacked credibility. The Board drew his attention to a number of the inconsistencies and gaps in his evidence, however he was unable to provide a satisfactory explanation. The Board found that the applicant had invented the whole of the factual basis of his case. Thus, the Board found that there would be no real risk of harm and dismissed the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

10.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  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: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

The applicant’s grounds

11.  In his Form 86 and supporting affirmation, the applicant did not raise grounds for judicial review. 

12.  At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application.  Despite having been reminded that the applicant had not provided any written grounds in support of the Leave Application, the applicant stated that he had nothing to say.

Discussion and conclusion

13.  It is plain that the applicant did not have any grounds in support of the intended challenge. He was unable to specify on what basis the Board was said to have acted unlawfully or procedurally unfair in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

14.  After having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above correctly identified the issues, and observed a very high standard of fairness. I am satisfied that the Board had properly assessed credibility with reference to the relevant reports placed before him.  Having regard to the information stated in the Director’s Decision that Sally Lawson, the Trainee Clinical Psychologist with the Justice Center in Hong Kong, was not a registered medical practitioner or registered psychologist in Hong Kong[6] and that the applicant had made good progress through regular therapy session,  I am satisfied that the Board had properly conducted the credibility assessment with reference to the applicant’s relevant mental and physical condition. I find there were no errors of law or procedural unfairness or irrationality in the Board’s Decision. 

15.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Order

16.  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