JASHIM KAMAL KHANDUKER alias KHANDUKER KAMAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2308/2019

[2025] HKCFI 180

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2308 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;

The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 12 August 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/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 11 July 2019 (“Board’s Decision”) dismissing the applicant’s appeal against a Chinese decision of the Director of Immigration (“Director”) dated 26 October 2018 (“Director’s Decision”) rejecting the applicant’s non-refoulement claim.

2.  As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 5 December 2024, which the applicant attended 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 Director’s Decision and Board’s Decision can be briefly stated as follows.

4.  The applicant is a national of Bangladesh. The applicant claimed that he sneaked into Hong Kong by boat from Mainland China on 9 December 2012. He was arrested for illegal remaining in Hong Kong on 23 March 2013. On 27 March 2013, the applicant lodged his torture claim, which had been rejected by the Director on 1 November 2013. The applicant made a non-refoulement claim on 16 December 2013 covering all applicable grounds other than 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 his fear of being harmed or killed by of being harmed or killed by members of Awami League (“AL”), which was a rival political party against the Jamaat-e-Islami Party (“JEI”) of which the applicant’s grandfather, father and uncle were members.

5.  In 2001, the applicant’s father passed away. However, the post held by his father in JEI could not be passed to the applicant. His trouble with the AL people started in 2006 after he referred people to AL for arranging work visas for people who wished to work overseas. It turned out the visas were forged and the referees were refused entry to Dubai. The applicant was then asked for a refund of the commissions that he received. An arrest warrant was also issued by the police against the applicant, who was later arrested and detained in jail for 27 days. After there were 3 incidents that prompted the applicant to leave his home country. The first incident took place in November 2011 when the applicant was assaulted by members of the AL. He lost consciousness and received a total of 15 stiches for the wound to his leg and back. The second incident was in the beginning of 2012 when the 5 referees demanded the applicant to refund them for the failed work visas. When the demand was not met, they looted his shop selling garments. They also encouraged the referees to file a complaint to the police. The police then issued two arrest warrants against him after two AL workers were killed during a fight between the AL and an alliance party of JIP. The second incident was in February 2012 when he was beaten by 12 to 15 members of the AL. He suffered a broken rib. In April 2012, he paid an agent to arrange his departure from Bangladesh.

6.  The Director decided against the applicant’s claim on all the above applicable grounds. After having taken all the relevant circumstances into account including the past ill-treatment, the severity of his injuries that he sustained, the Director found that there were no substantial grounds in believing that there would be any real and substantial risk of him being harmed or killed by the AL members. The Director found that the problem he had with the AL members was purely a private dispute between political parties. The Director was satisfied that both state protection and internal relocation alternatives were reasonably available. Hence, the applicant’s appeal to the Board.

7.  On 9 April 2019, the applicant attended a hearing before the Board. At the hearing, the applicant confirmed the truth and correctness of his evidence as contained in the hearing bundle and adopted it as the evidence for the appeal. In its assessment of the applicant’s credibility, the Board found that there were numerous material inconsistencies and discrepancies between his evidence and the statements he provided in his refoulement claim. The Board found that he was not a truthful witness, and had manufactured his claims for non-refoulement protection in Hong Kong. The Board did not accept any of the applicant’s claims, including his assertion regarding his father and his involvement with the JEI. Neither did the Board accept that the applicant had been attacked or harmed by members of the AL nor his claims in relation to the “visa scheme”. The Board concluded that the applicant would not face a risk of being harmed or killed by the members or supporters of the AL. In conclusion, the Board found that the applicant had failed to establish that there were substantial grounds for finding that there was a real risk that the applicant would suffer any kind of risks that he had asserted. The Board concluded that the applicant had failed to demonstrate that he was entitled to non-refoulment protection on any of the applicable grounds, and it affirmed the Director’s Decision.

Legal principles applicable to judicial review

8.  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

9.  In the applicant’s Form 86, the applicant stated that he was not given an opportunity to put forward his submissions before the Board. It was further averred that the source of information the Board relied on was not recognized or hearsay and outdated. The applicant repeated these grounds in his supporting affirmation. At the hearing, this court had asked him to elaborate on these grounds. The applicant however informed this court that the grounds set out in Form 86 and in the affirmation were prepared by his friend. He had no knowledge as what had been written and they were not the grounds he was relying on. Instead, the applicant repeatedly told the court that if he were refouled back to Bangladesh, his life would be in danger. Since the applicant was acting in person, this court asked him what mistake or error he believed the Board had made. Although the applicant informed this court that he had documents in support his claims, he could not produce anything. Even if the applicant had not disavowed the grounds he set out in Form 86 and his affirmation, the grounds contained in these documents have not condescended to any particulars. He did not say on 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.

10.  The Board’s Decision was arrived at with the benefit of a hearing in which the applicant was able to clarify matters raised by the Board. After examining the applicant’s evidence in detail, the Board found that the applicant was not a credible witness. These are findings of fact, which the court in a judicial review will not interfere with.

11.  In the Leave Application, the applicant has failed to identify any arguable error of law by the Board, any relevant matter that the Board had failed to consider or any other reason why the Board’s Decision was wrong. Having rigorously examined the Director’s Decision and 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. I am satisfied that there were no errors of law or procedural unfairness or irrationality in the Board’s Decision. The Board had properly examined the applicant’s issue with commonsense and high standard of fairness: see TK v Jenkins & Anor [2013] 1 HKC 526.

12.  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

13.  The Leave Application be 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

Form CALL-1