Mamun Miah v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1494/2020

[2025] HKCFI 3477

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1494 of 2020

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Val Chow:

1.  Form 86 be amended on the court’s own motion as follows:-

a.  the name of the Putative Respondent be amended as Torture Claims Appeal Board / Non-refoulement Claims Petition Office; and

b.  the Director of Immigration be named as the Putative Interested Party.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By Form 86 filed on 15 July 2020 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 22 May 2020 (the “Board’s Decision”).

2.To ensure that the proposed respondent is properly named and that the Director of Immigration (the “Director”) be made the proposed interested party as per usual practice, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.An oral hearing was requested by the Applicant. It took place before me on 24 July 2025 (the “Hearing”) and the Applicant attended in person.

Background

4.The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference. The essence of the basis of the Applicant’s claim is that he was in a conflict with certain individuals from the Chowdhury family (the “Adversaries”) over a land dispute. He claims that he would be killed or seriously harmed by the Adversaries because the Adversaries were members of the Awami League (“AL”), a political party in Bangladesh.

Discussion

5.The applicable legal principles relating to this type of applications are well established. The judicial review is not a further avenue of appeal. Though in non-refoulement cases, the court will adopt a high standard of fairness to review the decision of the Board with anxious scrutiny due to the seriousness of the issue at hand, the court should not usurp the role of the Board. Assessment of evidence, country of origin information (“COI”), risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless it can be shown that there are errors of law, procedural unfairness or irrationality in the Board’s Decision, see: Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

6.An applicant, even if unrepresented, is required to properly identify and particularise the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J (as he was then) at §142. The Applicant has failed to set out any specific grounds of review in his Form 86 and supporting affirmation. He only claimed that he intended to submit further documents and asked for time to collect his documents. However:-

(1)  The Applicant has failed to identify in his supporting affirmation as to what the documents were and how they would assist his case.

(2)  In any event, almost five years have passed since the Form 86 was filed, no such further document has been submitted.

7.Notwithstanding the deficiencies in the Applicant’s Form 86, I have given detailed consideration of the Board’s decision. I do not find any error of law, procedural unfairness or irrationality. There is nothing to indicate that the Board had failed to take into account any relevant material matters or that it had taken into account irrelevant factors.

8.In my view, the Board was entitled to find that there was no real risk of serious harm if the Applicant returns to Bangladesh:-

(1)  The Board accepted the Applicant’s case that his family had a land dispute with the Adversaries. However, the Board found the Applicant’s claim that the Adversaries would track him down with the assistance of the police to be speculative (§33).

(2)  The Board also found the Applicant’s claim that the Adversaries were able to track him down throughout the country to be contradicted by his own evidence that he stayed in Dhaka safely for 3 months before leaving Bangladesh without any difficulty (§§30, 34).

9.Against such findings of fact, the Board then went on to consider whether the Applicant’s claim fall within each of the applicable grounds for non-refoulement (§§36-42, 46-49) and concluded that none of the applicable grounds applied.

10.In any event, the Board was plainly entitled to find that internal relocation alternatives were available (§§33-34, 50-54):-

(1)  As already mentioned above, the Applicant’s claim that he could not relocate to other places in Bangladesh was a bare assertion which was in fact contradicted by his own experience of living safely in Dhaka for months.

(2)  Having taken into account relevant COI and the Applicant’s personal working experience, the Board was entitled to find that he would be able to relocate to and make a living in regions of Bangladesh outside his home locality.

11.The above fact-findings are matters within the remit of the Board and I do not see any basis for the court to intervene. I do not consider the Board’s Decision to be irrational, even on the enhanced Wednesbury standard.

12.At the Hearing, the Applicant did not submit any further documents. He only said a general election would be held in Bangladesh in the future and he would feel safe to return to Bangladesh if the Bangladesh Nationalist Party returns to power. I cannot see how these subsequent events can assist the Applicant’s case. In any event, the Applicant has failed to properly adduce such evidence by affirmation with reference to reliable and relevant COI. Accordingly, I give no weight to his bare assertions.

13.In short, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.

Conclusion

14.In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed.

Dated the 27^th day of August 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