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

HCAL 664/2020

[2025] HKCFI 4146

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 664 of 2020

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;

Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Bangladesh.  By a Form 86 dated and filed on 16 April 2020 (“Form 86”), and a supporting affirmation also dated and filed on 16 April 2020 (“the Affirmation”), he sought leave for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) dated 13 March 2020 (“TCAB Decision”)[1], which was exhibited to his Affirmation.

2.  The Applicant sought an oral hearing of his application, at which he appeared and made some oral submissions.  I have set out such below.

3.  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

Background

4.  This is set out in the TCAB Decision. I will not repeat the contents thereof, but in summary:

a.  The Applicant claimed non-refoulement relief on the basis that if he were sent back to Bangladesh, he would be harmed or killed by people from AL;

b.  The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 10 January 2019 (“Director’s Decision”);

c.  The Applicant then petitioned/appealed to the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claims on 21 October 2019; and

d.  The TCAB/NRCPO handed down the TCAB Decision on 13 March 2020, in which the decision-maker held that the Applicant was not entitled to non-refoulement relief on any of the relevant bases and confirmed the Director’s Decision.

Legal Principles

5.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep.  HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

6.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers.  The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them.  While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, 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 TCAB/NRCPO.  (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

7.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

8.  As the Applicant has not identified or set out any grounds of judicial review in the Form 86 or Affirmation, there is no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

9.  However, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

10.  The TCAB Decision set out the Applicant’s procedural and immigration history and general background, the nature of the matter before the TCAB/NRCPO including the requirement of a high standard of fairness, and principles relating to the four relevant types of risk which it had considered (Paragraphs 1 to 24)

11.  The TCAB/NRCPO then detailed the Applicant’s claims (Paragraphs 25 to 34) and the evidence and the discussions at the hearing (Paragraphs 35 to 81). It then moved on to its analyses of and conclusions as to the facts and evidence adduced in the case. This included that the Applicant’s claim as initially set out was unconvincing, that the core documents produced in support of the Applicant’s claim were fabricated to support the claim or that no weight could be put on them, and that significant aspects of the Applicant’s evidence on his involvement/activism in politics were unconvincing or completely wrong. As the decision-maker did not accept the Applicant’s evidence as credible, it found that that the Applicant had failed to establish Torture Risk, BOR 2 Risk, BOR 3 Risk or Persecution Risk. He also found that in any case that the Applicant could in any event relocate to Dhaka, and confirmed the Director’s Decision (Paragraphs 82 to 115).

12.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision.  This is especially so as to the assessment, reasoning, and findings regarding the evidence, credibility, risk of harm, and internal relocation, which are all matters primarily within the province of the decision-making body, and hence as to Torture Risk, Persecution Risk, BOR 3 Risk, BOR 2 Risk.

13.  At the hearing before me on 16 June 2025, the Applicant made two claims. The first was that the present government in Bangladesh was “useless”, and that it was a “common scenario” that “kidnapping, the murder and the other things is happening in the daylight and police force is not doing anything”. He therefore claimed that AL could attack him, and also that his previous party BNP would not shelter him even if it came into power, as he had left the party previously. He asked me to take such into account so that I would allow him to stay here. However, these are bare and unsubstantiated allegations. In any event I do not see how they are relevant to or assist his application for leave given the findings in, and my conclusions above as to, the TCAB Decision, and as judicial review proceedings are not a further avenue of appeal or for revisiting the assessment in the hope that the court may consider the matter afresh absent any legal error. I therefore reject and disregard such claims.

14.  The Applicant also claimed at the hearing that there were some “new problems” arising in the nature of a “land dispute”, as he said that influential, powerful, and rich people in his area, were “creating problem to my family, and I have proof to show it”. He claimed that his father had been attacked/assaulted, injured, and hospitalised, and that “they” had threatened the Applicant that they would kidnap and kill him if he were to return to Bangladesh. He also claimed that he had reported the attack on his father to the police but he “didn’t get any judgment or anything”. He asked to be allowed to submit two documents which he claimed were from 2022 and that he had only obtained after he had filed his leave application. While he claimed that it was “time consuming to collect” the documents, he said he did not recall the month or year he had become aware of them “because this happened [a] long time ago”. He claimed that the documents related to his father’s alleged assault (which case he alleged had been dismissed by the court “because they used their power to dismiss this case”) and hospitalisation, and a land dispute case, and that he wanted to use them to “prove my life is more dangerous in my country in respect of other times”. He asked me to take all such matters into account so that I would understand and allow him to stay in Hong Kong.

15.  The two documents totalled 23 pages and were all in Bengali. I returned them to the Applicant and gave him 21 days to file an affirmation exhibiting only those documents, with certified English translations of such[6] so that I could determine their relevance, admissibility, and the weight to be accorded to them. I told him I would determine such issues in the process of ruling on both his application to rely on those documents, and his leave application. However, the Applicant did not eventually file any such affirmation or documents by the deadline, or at all.  Nor did he seek an extension of time, or explain his failure to file anything.

16.  I therefore reject the application to adduce the said documents as evidence. It has not been substantiated with any documents and I am neither able to assess their contents, nor am I satisfied that they meet any of the criteria in Ladd v Marshall [1954] 1 WLR 1489.  Further, I do not see how such documents (or for that matter what are hence his bare and unsubstantiated allegations at Paragraph 14 above) are relevant to or assist his application for judicial review.  If he intends to claim that there has in fact been a significant change of circumstances or new information relevant to his non-refoulement claim, that may be relevant to the procedure in ss. 37ZO and 37ZP Immigration Ordinance (Cap 115). But it is not relevant to the present application (Amandeep Kumar v Torture Claims Appeal Board [2019] HKCA 1369 at §13; Poinem v Torture Claims Appeal Board [2020] HKCA 911 at §15). I therefore have not had any regard to them.

17.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

18.  In the circumstances, I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

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