ALAMIN MOHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3480/2019

[2025] HKCFI 3323

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3480 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;

1.   The Form 86 be amended on the court’s own motion.

2.   The 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 25 November 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 8 November 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 6 December 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds except torture risk[1].  The applicant had withdrawn his prior torture claim on 4 February 2013.  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003480_2019_files/the_Board's_Decision.pdf

2.  In his Form 86, the applicant named the Board and the Director as the proposed respondents and interested parties. As the Board should have been the proposed respondent and the Director interested party, the Form 86 will be amended accordingly on the court’s own motion.

3.  The basis of the applicant’s claim was that he would be harmed or killed by people from Chhatro League (“CL”) i.e. the student wing of the Jaamate Islam, due to his support for Chhatro Dal (“CD”), i.e. the student wing of Bangladesh Nationalist party. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 16 July 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.

Discussion

5.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

7.  In his Form 86 the applicant raised the following grounds:

(a)  the information provided was biased and irrelevant;

(b)  the Board failed to determine the threat to the applicant upon return to his country;

(c)  the Board’s Decision was based on information provided by fake YouTube news that was made by the ruling government’s IT sector;

(d)  all the sectors in Bangladesh are controlled by CL;

8.  Exhibited to the affirmation are some BBC news reports on Bangladesh student protests dated 9 October 2019; some on-line information about CL, some medical chits and academic transcripts.

9.  At the hearing, this court asked the applicant whether he had any further grounds he wished to submit in support of the Leave Application.  The applicant stated that because of his affiliation with student politics, the situation in his country was not good.

10.  As the Courts have repeatedly stated, 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.[4]  In the present case, the Board rejected the applicant’s claim because the Board found that his evidence was not credible, due to inter alia inconsistencies and discrepancies in various aspects of his case. In any event, the Board found that the ill-treatment he suffered was not serious and did not attain the minimum level of severity. Thus, the Board concluded that there was no real risk of harm.  The Board also concluded that reasonably sufficient state protection was available and that internal relocation would be viable.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

11.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness.  I am satisfied that the Board was entitled to reject the material account of the applicant’s evidence after having given the applicant the opportunity to elaborate and explain his evidence.  The applicant’s written grounds are vague and do not condescend to particulars. Neither was the applicant able to provide any grounds at the oral hearing to challenge the Board’s Decision.  The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5].

Order

12.  The Form 86 be amended on the court’s own motion.

13.  The 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