MIAH SHAHIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2303/2019

[2025] HKCFI 179

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2303 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 Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 12 August 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/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 2 August 2019  (“Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 11 July 2018 (“Director’s Decision”) rejecting the applicant’s non-refoulement claim.

2.  As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 5 December 2024, which the applicant attended 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 Board’s Decision can be briefly stated as follows.

4.  The applicant is a national of Bangladesh. The applicant claimed that he had sneaked into Hong Kong by boat from Mainland China on 11 January 2016 when police arrested him on the same day. He was later transferred to the Immigration Department’s detention facility. On 15 January 2016, the applicant lodged his non-refoulement claim by written signification covering all applicable grounds – 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 of being harmed or killed by members of the Awami League (“AL”), which was a rival party to the Bangladesh Nationalist Party (“BNP”) to which the applicant was an office holder.

5.  In 2014 during the Bangladesh national election, the applicant actively participated in helping BNP. During the election period, there were fighting and killing between the supporters of the two parties. The applicant and other leaders of the BNP received death threats from the supporters of the AL. The applicant left his home village and moved to Dhaka and later to India to avoid the AL people. On 11 December 2015, the applicant left Bangladesh for Guangzhou, China. About 1 to 2 months after he came to Hong Kong, members of the AL filed 3 false loan claims with the police against the applicant, falsely alleging that the applicant had borrowed from them 3 loans in the total sum of 140,000 Taka.

6.  The Director decided against the applicant’s claim on all the above applicable grounds. After having taken all the relevant circumstances into account, the Director found that there were no substantial grounds in believing that there would be any real and substantial risk of him being harmed or killed by the AL members. The Director found that the problem he had with the AL members was purely a private dispute between political parties. After having considered the country of origin information reports (“COI”), the Director was satisfied that both state protection and internal relocation alternatives were reasonably available. Hence, the applicant’s appeal to the Board.

7.  On 21 June 2019, the applicant attended a hearing before the Board. At the hearing, the applicant confirmed the truth and correctness of his evidence as contained in the hearing bundle and adopted it as the evidence for the appeal. He confirmed with the Board that he did not need any further time for preparation. The applicant informed the Board that he did not wish to give evidence or answers or clarifications at the hearing, as he had nothing else to add or supplement to the materials already submitted to the Board. The Board had considered all the evidence adduced before it, and concluded that the future risk of harm to the applicant was small. It was also found that the AL people were non-state actors with no involvement of public officials. The Board found that the applicant failed to provide any evidence in support of the alleged 3 false loan-related cases against him, and did not attach weight to his assertions. After having taken into account the COI, the Board concluded that state protection and internal relocation were also available. The Board concluded that the applicant had failed to demonstrate that he was entitled to non-refoulment protection on any of the applicable grounds, and it affirmed the Director’s Decision.

Legal principles applicable to judicial review

8.  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.

Discussion and conclusion

9.  The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation of the same date, he exhibited a copy of the Board’s Decision and the Director’s Decision, and put forward 3 handwritten grounds for the Leave Application. In summary, the applicant contended that the Board did not give him enough time at the hearing, and that the interpreter was bad as he could not tell the latter his problems. At the hearing, this court had asked him to elaborate on these contentions. The applicant however informed this court that the grounds were prepared by his friend, and he did not seem to have any knowledge of any of those grounds stated in the affirmation. Since the applicant was acting in person, this court asked him what mistake or error he believed the Board had made. The applicant informed this court that he wanted to tell me more about his problem. The problem he referred to was a leg injury he sustained in September 2024 after he had fallen off from a bicycle. He said he was still receiving medical treatment in Hong Kong and he wanted to remain longer so that he could continue to have the treatments for his injury. The applicant’s affirmation contained vague allegations without any particulars. Despite having been given an opportunity to give further elaboration, the applicant was not able to say on what basis the Board is said to have acted unlawfully or procedurally unfair in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable. His wish to receive medical treatment is not an arguable ground for the intended challenge.

10.  The Board’s Decision was arrived at with the benefit of a hearing in which the applicant was given an opportunity to make clarifications if he had wanted to. The Board’s findings of the low risks of harm the applicant would likely face; the availability of internal location and state protection are findings of fact, which the court in a judicial review will not interfere with.

11.  In the Leave Application, the applicant has failed to identify any arguable error of law by the Board, any relevant matter that the Board had failed to consider or any other reason why the Board’s Decision was wrong. Having rigorously examined the Director’s Decision and 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 there were no errors of law or procedural unfairness or irrationality in the Board’s Decision. The Board had properly examined the applicant’s issue with commonsense and high standard of fairness: see TK v Jenkins & Anor [2013] 1 HKC 526.

12.  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

13.  The Leave Application 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