Sarder Md Shojib v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2800/2019

[2025] HKCFI 1092

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2800 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;

Order by Deputy High Court Judge Levy:

The Leave Application be dismissed.

Observation for the Applicant:

Introduction

1.By prescribed Form 86 filed on 24 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 13 September 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 25 May 2018 (“Director’s Decision”) rejecting the applicant's non‑refoulement claim.

2.Pursuant to the applicant’s request for a hearing of the Leave Application, this court held a hearing on 26 February 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 respective decisions of the Director and the Board referred to above can be briefly stated as follows.

4.The applicant is a national of Bangladesh.  On 7 February 2016, he entered Hong Kong illegally by speedboat via China and was arrested by marine police.  After he had been transferred to the Immigration Department, the applicant lodged a non‑refoulement claim on 20 February 2016.  The applicant’s claim was considered under all applicable grounds - the 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 his enemies in the Awami League (“AL”), due to his father’s failure to pay extortion money and his family’s support for the rival Bangladesh National Party (“BNP”).

5.According to the applicant, the paternal side of his family were active members of the BNP.  His father owned a mobile accessory shop in Dhaka and the applicant assisted with the business.  In mid-2014, the secretary of the AL in the Srinagar Police Station Area sent 3 people to the applicant’s home in Patabhog to demand 20 lakh Taka from his parents.  They threatened to kill the applicant if his father failed to pay the money as demanded.  After they left, his father reported the matter to the local police, who refused to accept the report as the father was a member of the BNP.   

6.Subsequently on 10 January 2015, the same 3 individuals from the AL, along with 7 others, came to the applicant’s home and vandalized it.  The assailants used hockey sticks to assault the applicant and his parents for about 5 to 7 minutes.  The applicant received 10 stitches on his head and was hospitalized for about 10 days.

7.Due to his dangerous situation in Bangladesh, the father asked his friend to make arrangement for the applicant to go to China.  The applicant arrived at Guangzhou, China on 24 January 2016.

8.In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds.  The Director assessed the claimed risk of ill-treatment to have been low because (i) the applicant had not suffered any physical harm in the 12 months leading up to his departure from Bangladesh to China; (ii) no AL member came to his home again after the attack on 10 January 2015 and (iii) no body sought to locate the applicant.  After having considered the country of origin information reports (“COI”), the Director was satisfied that state protection was available and that internal relocation alternatives were available and reasonable.  Hence, the applicant’s appeal to the Board against the Director’s Decision.

9.On 22 May 2019, the applicant attended a hearing before the Board.  At the Board hearing, the applicant confirmed that his written claims are true, and answered questions from the Board.

10.The Board had serious doubts about the credibility of the applicant’s claim that he faced a real risk of harm.  It also found that the claim that he had been targeted by the AL was untrue.  The Board was therefore not satisfied that the applicant faced a real risk that he would suffer serious harm at the hands of the AL members.  Thus the Board dismissed the applicant’s appeal and affirmed the Director’s Decision.

Legal principles applicable to judicial review

11.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

12.The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation, the applicant exhibited the Board’s Decision and stated that the Director disregarded the danger and threats that he would face in his country in the event of refoulement, however the applicant did not provide any details.

13.At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application.  The applicant only repeatedly stated that the danger in his home country has not yet been diminished, and if he were refouled, he was not sure if he could survive there.  When the court asked him to identify errors or mistakes he believed that Board has made, the applicant was unable to put forward any criticism of the Board’s Decision.

14.It is plain that the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  

15.The Board’s Decision was arrived at after having carefully examined the applicant’s evidence.  It found that even on the applicant’s account, there was no real risk of harm under any of the grounds for non-refoulement.  These are findings of fact, which the court in a judicial review will not interfere with.

16.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 in the Decisions of the Director and the Board.  I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks.

17.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

18.The Leave Application be dismissed.

Dated the 31^st day of March 2025

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