Serniabet Sakim Alias a.K. Sairniabat v. Torture Claims Appeal Board
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HCAL 487/2024 [2026] HKCFI 5004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 487 OF 2024 BETWEEN
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 18 March 2024, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 21 December 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant’s claim for non-refoulement protection failed on the grounds of BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3]under the Unified Screening Mechanism (“the USM”). Accordingly, the Board dismissed the applicant’s petition against the decision of the Director of Immigration (“the Director”) dated 15 September 2023 and confirmed the same, which rejected the applicant’s non-refoulement claim on the said grounds. 3.The applicant had previously made a torture claim on 22 June 2009 and the claim was rejected by the Director on 21 December 2010. The applicant’s petition to the Chief Executive of the Hong Kong Special Administrative Region was rejected on 11 April 2011. Hence, the applicant’s Torture Risk[4] had been finally determined, and it was not necessary for the Board to assess this risk again in the Board’s Decision. Amendments 4.In Form 86, the applicant named “TORTURE CLAIM APPEAL BOARD NON-REFOULEMENT CLAIMS PETITION OFFICE, IMMIGRATION DEPARTMENT” as the putative respondents, and did not name any putative interested party. 5.In fact, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party. 6.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all. 7.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, and to add “Director of Immigration” as the putative interested party. The applicant’s case 8.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above. 9.In sum, the applicant initially claimed for non-refoulement protection because if refouled to Bangladesh, he would be seriously harmed or killed by M, one of the relatives of his sister-in-law, due to his conversion from Islam to Christianity. The applicant claimed that M and his brothers were active members of Bangladesh Jamaat-E-Islami and Bangladesh Islami Chatra Sibir. 10.In the applicant’s Supplementary Claim Form, he submitted that he lost contact with his family members who were still living in Bangladesh. If he were returned to Bangladesh, he would not contact them and his whereabouts would not become known to them and he would be unlikely to face any specific threats from M. His claim before the Board was that there was a real risk to him as a Christian convert if he returned to Bangladesh. 11.The applicant claimed that it would be difficult for him to find a job and rent a house if he returned to Bangladesh. The Bangladeshi government would not provide sufficient protection to him because he would be seriously harmed or even killed when he arrived in Bangladesh for his status as a Christian convert. Disposal on paper 12.The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper. Grounds for judicial review 13.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016). 14.The applicant did not advance any grounds for his intended judicial review in Form 86. 15.In his supporting affidavit dated 18 March 2024, the applicant stated that the Board’s Decision heavily relied on online reports and suggestion of various organizations which did not match the real on ground harsh situation. The mental, physical, social, financial torture in daily life and the real risk of being killed were not assessed. Discussion 16.First of all, from what the applicant stated in his supporting affidavit, he seems to challenge the Board’s finding in relation to the availability of state protection. 17.This court notes from the Board’s Decision that the applicant was legally represented before the Board. If he had any country of origin information (“COI”) that he deemed could reflect “the real on ground harsh situation” of his country, he could and indeed should have submitted them to the Board for consideration through his legal representative. 18.Moreover, this court notes that the Board had referred to very extensive COI in its discussion of the availability of state protection for the applicant in paragraphs 91 to 151 of the Board’s Decision. The COI referred to were all fully-referenced, and were not merely from “online reports”. The Board did note the various problems in Bangladesh in paragraphs 91 to 99, including the problem of corruption and the harassment and social isolation of, and physical violence against, converts to Christianity from Islam and Hinduism. 19.This court is of the view that the Board had considered available information in the applicant’s circumstances comprehensively. It does not appear to this court that the Board had relied heavily on online reports and suggestion of various organizations which did not match the real on ground harsh situation, as suggested by the applicant in his affidavit. 20.With regards to the applicant’s accusation that his mental, physical, social, financial torture in daily life and the real risk of being killed were not assessed, this court notes that the Board did consider the applicant’s case of being persecuted as a Christian convert as falling within one of the RC[5] reasons. The Board had also correctly applied the legal principles in relation to the assessment of Persecution Risk, in particular, if it was found that the protection of the country of his nationality was available, and there was no ground based on well-founded fear for refusing it, the person concerned was not in need of international protection and was not a refugee (see paragraphs 9 to 19 of the Board’s Decision). 21.This court finds that the applicant’s risk arising from his conversion to Christianity had been duly assessed but rejected by the Board. If he intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. 22.Thus, none of the matters asserted by the applicant in his affidavit constitutes a valid ground to challenge the Board’s Decision. 23.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524). 24.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review. 25.As aforesaid, the applicant was legally represented in his petition before the Board. Thus, he was given the opportunity to present his case to the Board through his legal representative. 26.As can be seen from the Board’s Decision, the Board had duly considered the applicant’s claim, namely his risk of serious harm or being persecuted in his country due to his conversion to Christianity. The Board had also assessed the applicant’s claimed ill-treatment in the past due to the same reason. 27.As mentioned, the Board had gone through very extensive COI in its assessment of the applicant’s case in paragraphs 91 to 151 of the Board’s Decision, and it is not necessary to repeat the same here. 28.In gist, while noting the widespread corruption and the reports of harassment and social isolation of, and physical violence against, converts to Christianity from Islam and Hinduism in Bangladesh, the Board found that the state appeared willing and able to offer effective protection to religious minorities. Persons belonging to religious minorities would have access to and be able to avail themselves of the protection of the authorities. President Abdul Hamid had publicly emphasized the importance of religious freedom, tolerance, and respect for religious minorities. There were no laws prohibiting religious conversion and there were no legal restrictions preventing Hindus, Buddhists, Christians or Ahmadis from freely practising their religions, accessing state schools, health or other government services. Christians in Bangladesh might face instances of societal discrimination but in general, the level of societal treatment was not sufficiently serious by its nature and/or repetition, or by an accumulation of various measures, to amount to persecution or serious harm. 29.Further, besides the guarantees provided by the Constitution, the Bangladeshi government had also enacted laws and acts to uphold and protect religious values. The Bangladeshi government, concerned by the rise of religious extremism and continuing violent attacks against religious minorities, had increased its attention to this problem at the national level. 30.The Board considered that the Bangladeshi government had tried its best to improve police professionalism towards corruption, provide protection to religious minorities including the Christian converts, curb mob violence and provide channels to seek justice for religious minority group in general. A government striving to deal with problems could not be said to be acquiescing in impermissible acts. The Board found that the picture presented by the COI was not one showing the government’s indifference to or inaction in respect of the unsatisfactory social conditions. Further, the fact that the government’s efforts were not wholly effective did not of itself mean it was de facto permitting such problems to take place so as to facilitate and enable those perpetrating the problems to do so with impunity. 31.Thus, the Board found that reasonable protection of the country of the applicant’s nationality was available, and there was no ground based on well-founded fear for refusing it. 32.Moreover, regarding the nature and extent of injuries that the applicant claimed to have experienced, the Board did not accept that the ill-treatment, whether physical or mental, attained a minimum level of severity which required international protection. 33.Thus, the Board found that the applicant’s application for non-refoulement protection failed on the grounds of BOR 2 Risk, BOR 3 Risk and Persecution Risk. 34.The assessment of evidence, COI and risk of harm was primarily within the realm of the Board in dealing with the applicant’s petition. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion. 35.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 36.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused. Conclusion 37.For reasons aforesaid, the Leave Application is dismissed. Dated the 2nd day of September 2026
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 [1] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [3] Risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. [4] Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115. [5] The non-refoulement principle under Article 33 of the 1951 Convention relating to Status of Refugees. |
Cases cited in this judgment