HOSSEN BELLAL v. TORTURE CLAIMS APPEAL BOARD

HCAL 3425/2019

[2025] HKCFI 2610

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3425 OF 2019

Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	onsideration of the documents andoral submissions by the applicant or counsel in open court;

1.   The applicant’s application for leave to withdraw the application for leave to apply for judicial review be refused.

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

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 19 November 2019, 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 5 November 2019 (“the Board's Decision”).  The Board’s Decision can be viewed in the following hyperlink: 

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003425_2019_files/the_Board's_Decision.pdf

2.  The Board found that the applicant was unable to make out his claims on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 28 November 2018, which rejected the applicant’s non-refoulement claim.

The applicant’s case

3.  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.

4.  In sum, the applicant claimed for non-refoulement protection because he would be at risk of harm, being ill-treated or killed by members of the Awami League party (“AL”) on the basis of his past affiliation with the Jamaat-e-Islami party if he were to return to Bangladesh.

Withdrawal of the Leave Application

5.  This court is aware that the applicant had originally requested for an oral hearing of the Leave Application.  However, by his latest affirmation dated and filed on 14 May 2025, the applicant made an ex parte application for leave to withdraw the Leave Application.  In the said affirmation, the applicant stated that:-

“I want to go back to my country so I want to withdraw my judicial review. I will go home as soon as possible.”

6.  There is no evidence to show that the applicant made the above withdrawal application other than out of his own volition.  With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing for the Leave Application.  It is therefore not necessary for this court to afford him any oral hearing for the Leave Application even though he had requested one before.

7.  However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

8.  Thus, it is just not right to leave the action at large by granting leave to withdraw to the applicant.  The applicant’s application to withdraw the Leave Application is therefore refused.  This court will proceed to determine the merits of the Leave Application.

Grounds for judicial review

9.  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).

10.  The applicant failed to identify any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 19 November 2019.  He merely stated in his affirmation that his affirmation was for leave to apply for judicial review against the decision of the adjudicator of the Board as well as the Director.

Discussion

11.  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).

12.  First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, [2018] HKCA 549).  Thus, this court will only deal with the Leave Application in respect of the Board’s Decision.

13.  Despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality as aforesaid.

14.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 10 September 2019.  The applicant was present and was given the chance to present his case and grounds of appeal to the Board in person.  The Board carefully examined his evidence and questioned the applicant for details. 

15.  As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning in rejecting the applicant’s claims.  The Board found that there was no evidence to show that the applicant had been personally targeted.  The applicant had indeed accepted at the hearing that the attacks upon him by AL people were carried out at random.  There was also no evidence that the attackers were acting otherwise than in their personal capacities.  The fact that the attackers might have been members of a rival political party did not invest their activities with any element of state or official involvement.  The injuries he sustained were minor and did not attain a minimum level of severity.  The perceived risk was localized in nature.

16.  In assessing the availability of state protection, the Board was aware that the applicant believed that the Bangladeshi police would not help him as he was not an AL member.  Yet, it was mere speculation of the applicant, as was his belief that he would be subjected to arbitrary arrest or forced disappearance if the police had found him at his cousin’s home in Chittagong after the 2014 attack.

17.  The Board had referred to the then most updated country of origin information for the applicant’s country from different sources.  Although the Board noted that corruption and abuse of power had been and continued to be major problems affecting the police in Bangladesh, it also found that the Bangladeshi government had taken steps to improve the performance of the police and to make the police more accountable, disciplined and professional.  The government also made it easier for members of the public to report corruption and lack of service.  The Board concluded that state protection was ready and available to the applicant upon his return to Bangladesh.

18.  Although the Board found the applicant did not face a real and personal risk of torture, ill-treatment, arbitrary deprivation of life or persecution, the Board went on to assess the viability of internal relocation for the applicant.  The Board found that the applicant, as an able-bodied adult in his thirties with various work experience, could safely relocate to other parts of Bangladesh such as Khulna or Dhaka, if he were afraid to return to his home area.  The incidents with the AL people, even if they occurred as suggested by the applicant, were localized incidents.  The applicant’s perceived risks could be reduced or negated by internal relocation.

19.  The finding of facts is within the sole ambit of the Board.  This court finds no errors of the Board in reaching its decision based on all the evidence before it.  In fact, in view of the applicant’s latest affirmation confirming that he wanted to return to his home country and to withdraw his judicial review, it appears that there is no danger for him to return to Bangladesh.  Hence, there is absolutely no ground for him to make any non-refoulement claim and there is no prospect of success in his intended application for judicial review at all.

20.  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 error 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. 

21.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed 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

22.  For reasons aforesaid, the application for leave to withdraw the Leave Application is refused and the Leave Application is 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

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