Sarder Mohammad Shakil v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1429/2020

[2025] HKCFI 3588

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1429 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 Torture Claims Appeal Board /  Non-refoulement Claims Petition Office be named as the Putative Respondent.

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 9 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 27 May 2020 (the “Board’s Decision”).

2.To ensure that the parties are properly named, 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 25 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 Applicant is from Bangladesh. The basis of the Applicant’s claim is that he would be subject to serious harm or even be killed by associates of Awami League (“AL”) if he were to return to his home country, the reason being that the Applicant was an active supporter of a rival political party known as the Bangladesh Nationalist Party (“BNP”).

Discussion

5.As this type of leave application is intended to be a filtering process and elaborate reasons are not necessary (see Re Zunariyah [2018] HKCA 14, at §23), I shall set out my brief reasons below.

6.It is trite that determination of the merits of a non-refoulement claim is generally within the remit of 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 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.

7.An applicant, even if unrepresented, is required to properly identify 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.

8.In the Form 86 and his affirmation in support, the Applicant did not provide any grounds in support of the Leave Application. 

9.At the Hearing, the Applicant said he had nothing to add.

10.Notwithstanding the Applicant’s failure to identify any ground of review, I have considered the Board’s Decision with anxious scrutiny.  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 matters or that it had taken into account irrelevant matters. 

11.The Board’s Decision was comprehensive with a meticulous analysis on the evidence before it.  In particular, the Board was entitled to reject the Applicant’s case on risk of harm because (amongst others) the Applicant’s account was incredible, internally inconsistent and unconvincing (§§52-56). The minor injuries suffered by the Applicant in past clashes with the AL were part of the general conflict between AL and BNP supporters. There was no evidence that he was specifically targeted and in any event the past harm suffered by the Applicant was not sufficiently serious to give rise to a real risk of serious harm should the Applicant returns to Bangladesh (§§60-61).

12.The Board is also entitled to find that state protection will be available in any event or that the Applicant can be relocated to other parts of the country in light of his personal circumstances  (§§66-67, 69, 84-91). The Applicant’s contention that he will not have protection in his home country or that he cannot relocate to other parts of the country is a bare assertion not supported by credible evidence. There is simply no evidence that the Applicant’s adversaries would have the motivation and ability to pursue the Applicant if he relocates to another region in Bangladesh (§89).

13.Hence, I am satisfied that the Board’s Decision meets the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. 

14.The intended challenge is not reasonably arguable. Accordingly, I refuse to grant leave for judicial review.

Conclusion

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

Dated the 16^th day of September 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