HAWLADER SAHID v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3700/2019

[2024] HKCFI 2211

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3700 of 2019

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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Mr Hawlader Sahid (the “Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (the “2019 Board”) dated 9 December 2019 (the “2019 Board Decision”) when the 2019 Board affirmed the decision of the Director of Immigration (the “Director”) dated 30 September 2019 (the “2019 DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (the “2019 Claim”).

Background of the Applicant

2.  The Applicant is a Bangladeshi. He was born on 4 February 1990.

3.  From 2006 to 2013, the Applicant worked as a salesman. He stayed in Hong Kong from 2014 to 2017 as a non-refoulement claimant. After he returned to Bangladesh in 2017, he was supported by his parents until he came to Hong Kong again in 2019.

4.  The Applicant’s family were supporters of the Bangladesh Nationalist Party (“BNP”).

5.  In 2008, the Applicant became a member of BNP. In 2009, he became the General Secretary of BNP committee in Dewanbari, Dewbhog village. He convened BNP meetings regularly and instructed party members to promote BNP ideology in his village.

6.  After the Applicant returned to Bangladesh in 2017, he was told by Arif (“Arif”), the BNP leader of the Narayanganj district committee, that since Awami League (“AL”), another political party in Bangladesh, was in power, the Applicant would not do any political work until the next election in 2018. Thereafter, the Applicant did not work as a General Secretary of the BNP committee in Dewanbari, Dewbhog village like he used to be. He was only an ordinary member of BNP. He listened to Arif and remained low profile until late 2018.

Previous non-refoulement claims of the Applicant

7.  In March 2013, the Applicant was ambushed by some 15 AL members with hockey sticks or wooden sticks when he was returning home from the BNP office. They threatened to kill the Applicant if he continued his work for BNP. He was hit on his back and left shin. His bones were not fractured. He received treatment in a private clinic. (the “2013 Incident”)

8.  The Applicant reported the 2013 Incident to the Fatullah police station but the police refused to accept his complaint.

9.  In May 2013, the Applicant participated in a rally organized by Hefajat-e-Islam (the “2013 Rally”) which became violent when the police and security forces started to disperse people with water cannons and rubber bullets. The Applicant did not sustain any injuries but many people were killed.

10.  The following morning, some policemen and leaders of AL in the Applicant’s village came to the Applicant’s home. The Applicant ran away. He was later told by his father that the police wanted to arrest the Applicant saying that the Applicant and his fellow BNP members took part in the 2013 Rally and suspected that the Applicant was involved in the killings on that night (the “2013 Murder”). The police showed an arrest warrant to the Applicant’s father (the “2013 Arrest Warrant”). The Applicant said that this was a false accusation against him.

11.  After learning this, the Applicant was worried about his safety. He went into hiding at the homes of his relatives in different places before he left Bangladesh on 17 June 2014 for China. The Applicant said that his agent had bribed the immigration officers at the airport so that he encountered no difficulties leaving Bangladesh.

12.  From China, the Applicant came to Hong Kong on 21 June 2014. He was refused permission to land Hong Kong and he lodged a non-refoulement claim on the same day (the “1^st Claim”). He said that he would be harmed or killed by AL people as he refused to join AL and the Bangladeshi police would arrest him for the 2013 Murder if he were returned to Bangladesh.

13.  On 27 June 2014, the Applicant withdrew the 1^st Claim. He was removed to Shenzhen on 28 June 2014 but he sneaked back to Hong Kong by boat on 2 July 2014. He was arrested by police on the same day and referred to the Immigration Department on 4 July 2014 for investigation. He lodged another non-refoulement claim by another representation dated 5 July 2014 (the “2^nd Claim”). The Applicant said that he withdrew the 1^st Claim because he was misled by his friend in believing that it was safe for him to return to Bangladesh when in fact it was not. The substance of the 1^st Claim and the 2^nd Claim was the same.

14.  The Director refused the 2^nd Claim by a decision dated 12 April 2017 (the “2017 DOI Decision”). The Applicant appealed to the Board (the “2017 Board”) (the “2017 Appeal”), the 2017 Board affirmed the 2017 DOI Decision by a decision dated 24 October 2017 (the “2017 Board Decision”). On 18 October 2017, after the 2017 Board had written the 2017 Board Decision but before it had been sent to the Applicant, the 2017 Board received a letter from the Appellant indicating that he would like to withdraw the 2017 Appeal. As the 2017 Board Decision had been written, the 2017 Board resolved to issue it. The 2017 Board dismissed the 2017 Appeal.

15.  On 14 November 2017, the Applicant flew back to Bangladesh.

The 2019 Claim

16.  After returning to Bangladesh, the Applicant went back to live in his home village. Nothing eventful happened until October 2018.

17.  In October 2018, the AL filed many false cases against a lot of BNP leaders to weaken BNP before the December 2018 general election. Arif instructed that all BNP members and supporters should become more politically active and campaign before the election.

18.  The Applicant started to be politically active again. He distributed BNP leaflets and persuaded others to support and join BNP in his village. He also took parts in rallies organized by BNP leaders.

19.  In the end of October 2018, the Applicant took part in a BNP procession to demand for the release of BNP party leader (the “2018 Procession”). When the 2018 Procession were going towards Fatullah from Kashipur, they were attacked by AL members along with the police. The Applicant was beaten up with wooden sticks by some AL members and sustained bruises on his arms and right shin. He did not report the incident to the police and only applied some ointment on his bruises. A few days later, he learnt that his very close political friend, Saddam Dewan, died in the attack.

20.  AL won the 2018 election. In the end of December 2018, some AL members along with the police came to the Applicant’s house to look for him. The Applicant was not at home at that time. An AL member punched the Applicant’s father on his stomach and pushed his mother. They told the Applicant’s parents that they would find the Applicant and kill him. The police told the Applicant’s parents that there was an arrest warrant against the Applicant (the “2018 Arrest Warrant”) and he better surrendered to the police station. The Applicant said that the 2018 Arrest Warrant was related to a killing occurred in the 2018 Procession (the “2018 Murder”).

21.  After learning the above, the Applicant decided to leave his home town and went into hiding in Baligaon and later in Jessore before he departed Bangladesh on 20 May 2019 for India. From India, the Applicant travelled to Nepal and then to China. From China, he again entered Hong Kong illegally by boat on 16 July 2019. The Applicant travelled without any travel documents and he did not go through any immigration checkpoints all his way.

22.  The Applicant was arrested by the Hong Kong police upon his entering Hong Kong. He lodged the 2019 Claim based upon his fear of being ill-treated or even killed by the AL people if he were returned to Bangladesh.

Procedural history for the 2019 Claim

23.  By written significations of 18 July 2019 and 9 August 2019, the Applicant lodged the 2019 Claim.

24.  The Director had considered the 2019 Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (the “Ordinance”) (“torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights, Cap. 383 (the “BOR”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

25.  By the 2019 DOI Decision, the Director refused the 2019 Claim. The Applicant later filed an appeal/petition to the Board (the “2019 Board”) (the “2019 Appeal”). By the 2019 Board Decision, the 2019 Board affirmed the 2019 DOI Decision. The 2019 Board rejected and dismissed the 2019 Appeal.

26.  On 11 December 2019, the Applicant filed the Form 86 herein (the “Form 86”) seeking leave for judicial review of the 2019 Board Decision. The Applicant named the 2019 Board as the proposed respondent and the Director as the interested party in the Form 86.

27.  The Applicant filed his supporting affirmation on 11 December 2019 (the “Supporting Affirmation”).

28.  On 8 July 2024, the Applicant filed another affirmation applying to withdraw this intended judicial review application (the “Withdrawal Application”).

29.  As the Applicant in his claim form for the 2019 Claim also relied on matters referred to in the claim forms for his previous non-refoulement claims, i.e. the 1^st Claim and the 2^nd Claim, I shall also set out below briefly the 2017 DOI Decision and the 2017 Board Decision.

The 2017 DOI Decision

30.  The Applicant had withdrawn the 1^st Claim and the Director had considered the 2^nd Claim on all applicable grounds under the USM.

31.  After carefully assessed the 2^nd Claim, the Director considered that the 2^nd Claim was not substantiated. The Director assessed the level of risk of harm upon the Applicant’s return to Bangladesh to be low.

32.  The Director considered that the low intensity and frequency of past ill-treatment from the AL people was indicative of a small future risk of harm to the Applicant upon his return to Bangladesh.

33.  After the 2013 Incident, the Applicant did not encounter any problem from the AL people. They did not come to his home to look for the Applicant when he was hiding from police for the 2013 Murder before leaving Bangladesh in 2014.

34.  Having regarded the duration and frequency of the past alleged threat from AL people, the Director did not accept that the ill-treatment, whether physical or mental, inflicted upon the Applicant by the AL people attained a minimum level of severity. The Director also did not accept that the AL people had a genuine intention to seriously harm or kill the Applicant.

35.  The Applicant could stay in different cities in Bangladesh when he was hiding from the police arrest without any problem from the AL people. The Director was of the view that if there was a risk from the AL people, such risk was only localized in the Applicant’s village and the risk of harm from the AL people was small upon his return to Bangladesh, especially if he was out of his home village.

36.  The Director viewed that even if the police would really arrest the Applicant upon his return, they were only discharging their duties to investigate suspected offence.

37.  The objective country of origin information (“COI”) showed that there were channels to redress the concerns on availability of state protection and the Bangladeshi government had shown its willingness to tackle the problems. The Director opined that the Applicant could seek legal assistance for the false case against him. There was no indication that the Applicant would be harmed by the police and a fair trial would not be given to the Applicant after his arrest.

38.  The Director also assessed that internal relocation alternatives were available and reasonable.

39.  Bangladesh has a land area of about 130,000 sq. km. with estimated population of 156 million people by July 2016. There was no indication that the state was involved in, indifferent to or provided any form of encouragement to the AL people for their acts against the Applicant. The Applicant had previously stayed in several cities without encountering any problem from the AL people. The Director took the view that the threat from the AL people, even if it existed, was only localized in the Applicant’s village. The Applicant could relocate to other cities in Bangladesh to avoid those AL people.

40.  Internal relocation is permissible under the laws in Bangladesh. Being an able-bodied adult of young age, the Director was of the view that it was not unreasonable for the Applicant to relocate to other areas in Bangladesh to lower or negate the perceived risk of feared treatment upon his return to Bangladesh.

41.  For the aforesaid reasons, the Director did not accept that the Applicant would face a real and personal risk of being subjected to ill-treatment, allegedly inflicted by the AL people or the police, prohibited by BOR 3 upon his return to Bangladesh. The Director also found that the Applicant failed to establish a personal and real risk of being arbitrarily deprived of his life in violation of BOR 2 upon his return to Bangladesh.

42.  The Director considered that there was nothing to demonstrate that the Applicant’s political opinion in supporting BNP was not tolerated by the authorities that led to the Applicant’s fear of persecution for holding such opinions. The Applicant’s problem was not because of “race, religion, nationality, membership of a particular social or political opinion”. There was no information to show that state protection and fair trial would not be available to the Applicant. The perceived risk of harm, if any, was avoidable if the Applicant moved to places other than his home village upon his return to Bangladesh. The Director did not accept that the Applicant’s fear was well-found. The Director assessed that the Applicant’s case did not warrant non-refoulement protection on the grounds of persecution risk.

43.  The Director also did not accept that there were substantial grounds for believing that the Applicant would be subjected to torture by the AL people upon his return to Bangladesh. There was no evidence indicating that the ill-treatment inflicted on the Applicant by the AL people was by or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity. There was also no indication that the State of Bangladesh was involved in, indifferent to or provided any form of encouragement to the AL members in threatening or attempting to harm the Applicant. Even if the police wanted to arrest the Applicant for the 2013 Murder case, it was only the police’s responsibilities to investigate the case. There was no indication to show that the Applicant would be harmed by the police and a fair trial would not be given to him after his arrest.

44.  For the reasons set out in the 2017 DOI Decision, the Director rejected the 2^nd Claim.

The 2017 Board Decision

45.  The 2017 Board analyzed the evidence provided by the Applicant in his claim form, in the screen interview with the immigration officer and in the hearing before the 2017 Board. The 2017 Board found the Applicant’s account of various issues raised by the 2017 Board at the hearing to have been problematic, with inconsistencies and implausibilities giving rise to serious credibility concerns about aspects of his claims and evidence.

46.  The Applicant gave contradictory evidence about the circumstances in which the police and the AL people came to his home seeking to arrest him for the 2013 Murder.

47.  The 2017 Board found that the Appellant’s evidence about his role within the BNP was both contradictory and, in certain respects, implausible.

48.  From evidence given by the Applicant at the hearing, the 2017 Board formed the view that the Applicant misunderstood the background to and purpose of the 2013 Rally. The 2017 Board also had concerns about the Applicant’s claim to have departed Bangladesh while subject to an outstanding arrest warrant.

49.  The 2017 Board also did not accept the Applicant’s explanation for his withdrawal of the 1^st Claim as credibile.

50.  Having carefully considered all of the Applicant’s claims and evidence, the 2017 Board did not find that the Applicant was a credible witness overall. The 2017 Board did not accept that the Applicant was involved in the BNP to the extent claimed. The 2017 Board also did not accept that he was targeted and beaten up by rival AL supporters. The 2017 Board did not accept that the Applicant participated in the 2013 Rally and in the aftermath police and AL people came to his home with an arrest warrant or that he went into hiding as a consequence.

51.  The 2017 Board did not accept that the Applicant had to pay a bribe or otherwise depart Bangladesh via irregular means. The 2017 Board did not accept that he had any reason for doing so.

52.  The 2017 Board was not satisfied that the Applicant faced any reasonably possibility of being harmed in Bangladesh if he returned there, whether by the AL people, the police, or anyone else.

53.  After considering all the evidence adduced by the Applicant and for reasons stated in the 2017 Board Decision, the 2017 Board found that the Applicant had failed to establish his case on all applicable grounds under the USM. The 2017 Board affirmed the 2017 DOI Decision and dismissed the 2017 Appeal.

The 2019 DOI Decision

54.  The Director had also considered the 2019 Claim on all applicable grounds under the USM.

55.  After carefully assessed the 2019 Claim, the Director considered that the 2019 Claim was not substantiated.

56.  Upon consideration of all available information in the Applicant’s claim form, his supporting documents and information provided in the screening interview, the Director found that part of the Applicant’s story was irrational, illogical and with inconsistent details. The Director did not accept part of the Applicant’s story was genuine and determined that the information provided by the Applicant on the centerpiece of his claim was not credible.

57.  The Applicant produced no evidence proof of the 2013 Arrest Warrant having been issued against him. He had stayed in Bangladesh for about 2 years after his return in 2017 and yet did not secure any solid proof of his danger from police before he left Bangladesh again in 2019.

58.  The Applicant did not mention the 2018 Arrest Warrant in the claim form for the 2019 Claim submitted on 13 September 2019 until the screening interview of 25 September 2019 and the Applicant produced no evidence proof of the 2018 Arrest Warrant being issued against him.

59.  When the Applicant returned to Bangladesh on 17 November 2017 via the Dhaka airport, he was not arrested by the police though the Applicant claimed that the 2013 Arrest Warrant was still in force against him. He had not been arrested during the 2 years from 2017 to 2019 when he was staying in Bangladesh.

60.  In any event, the Director found that there were no substantial grounds for believing that there would be any real and substantial risk of the Applicant being harmed or killed upon his return to Bangladesh.

61.  The Director considered that the low intensity and frequency of past ill-treatment from the AL people and police after his return to Bangladesh in 2017 was indicative of a low future risk upon his return to Bangladesh.

62.  Having regard to the nature, frequency and the extent of the sufferings or injuries claimed by the Applicant after his return to Bangladesh in 2017, the Director did not accept that the asserted ill-treatment inflicted upon the Applicant (both physically and mentally) had attained a minimum level of severity.

63.  Based on all the Applicant’s assertions, the Director assessed that the Applicant was at most a junior member of BNP. There was no evidence to prove that AL intended to inflict any serious harm or threat on him because of his low level of work. There was no indication that the ill-treatment inflicted on the Applicant by the AL people in his home village was connected with the whole AL, any state interest or policy.

64.  The Applicant was able to leave and return to Bangladesh. It did not reflect that he was a target of the police or the government. The Director did not accept that the Bangladeshi government and the police would not help or protect the Applicant after his return to Bangladesh.

65.  According to the COI, official channels were available in Bangladesh to facilitate complaints against the misconduct of police and government officials. The COI showed that the Bangladeshi government did take actions to protect the rights of its citizens. There was no indication to show that the authorities failed to discharge their duties or tolerate any unlawful and abusive behaviour committed by an individual, AL people or even a police officer. The Director viewed that reasonable state protection would be available to the Applicant if he returned to Bangladesh.

66.  As the Applicant was not trusted to be a target of wanted person from police, the Director did not believe that the police would track him down by nationwide connection. Internal relocation alternatives were not only available and reasonable but would further lower or negate the Applicant’s perceived risk from the AL people.

67.  Being an able-bodied adult of young age, the Director considered that it was not unreasonable or unduly harsh for the Applicant to relocate to other areas in Bangladesh to lower or negate the alleged risk of feared treatment upon his return to Bangladesh.

68.  For the aforesaid reasons, the Director did not accept that the Applicant would face a real and personal risk of being subjected to ill-treatment prohibited by BOR 3 upon his return to Bangladesh. The Director also found that the Applicant failed to establish a personal and real risk of being arbitrarily deprived of his life in violation of BOR 2 upon his return to Bangladesh.

69.  The Director considered that being a low-tier member of BNP, the Applicant had no involvement in the political violence between AL and BNP which had nothing to do with “race, religion, nationality, membership of a particular social group or political opinion”. The Director did not accept that the Applicant’s fear was well-found. The Director assessed that the Applicant’s case did not warrant non-refoulement protection on the ground of persecution risk.

70.  The Director also did not accept that there were substantial grounds for believing that the Applicant would be subjected to torture by the AL people upon his return to Bangladesh. The Bangladeshi government was not involved in, indifferent to or provided any form of encouragement to the AL people in threatening, attacking or killing the Applicant. There was nothing to suggest that the Applicant would not be protected by the Bangladeshi government if he returned there.

71.  For the reasons set out in the 2019 DOI Decision, the Director rejected the 2019 Claim.

The 2019 Board Decision

72.  The 2019 Board found the Applicant’s claim full of inconsistencies and his evidence was not reliable or credible.

73.  The Applicant claimed that he was facing 2 false charges of murder in Bangladesh but failed to produce any documentary evidence in support of his claim. He only said that his parents were told by the police that the 2013 Arrest Warrant and the 2018 Arrest Warrant had been issued against him. After considering the relevant COI, the 2019 Board was of the view that it was most unusual for the police not handing over or leaving a copy of the Arrest Warrant with the Applicant’s parents for the serious offence of murder. Furthermore, the Applicant was not arrested or put into prison on his return to Bangladesh in November 2017.

74.  The Applicant’s evidence of false murder charges was based on hearsay. He had ample time to obtain documentary proof on these false charges during his stay in Bangladesh after his return in November 2017. Yet, he had not produced any documentary evidence in support of his claim. The Applicant is an experienced claimant of non-refoulement protection having made the 1^st Claim and the 2^nd Claim previously. He fully understood the importance of supporting documents on making non-refoulement claims before he departed Bangladesh in May 2019, i.e. 5 months after he was told that the 2018 Arrest Warrant had been issued against him.

75.  The 2019 Board also referred to the 2017 Board Decision which dismissed the 2017 Appeal. The 2019 Board had considered the 1^st Claim and the 2^nd Claim as background information for the 2019 Claim.

76.  Based on the assessment of the Applicant’s evidence and credibility, the 2019 Board found his evidence unreliable. His claim failed to fulfil the requirements to establish a torture risk. The ill-treatment relied on by the Appellant did not attain a minimum level of severity to fall into the scope of BOR 3.

77.  The 2019 Board accepted that the Applicant’s claim of persecution risk could be categorized under the “political opinion” of the convention grounds but based on findings on his lack of credibility, his such claim had not been established.

78.  Based on the findings of fact as set out in the 2019 Board Decision, the 2019 Board was not satisfied that the Applicant had a real risk or danger against his life should he be refouled back to Bangladesh.

79.  After considering the COI, the 2019 Board was of the view that the Bangladeshi government was implementing measures to improve the police force. The Applicant should seek protection from the state or legal aid assistance on his return to Bangladesh should he be tried in court.

80.  The 2019 Board was of the view that internal relocation was also an option opened to the Applicant upon his return to Bangladesh.

81.  For reasons stated in the 2019 Board Decision, the 2019 Board found that the Applicant had failed to establish his case on all applicable grounds under the USM. The 2019 Board affirmed the 2019 DOI Decision and dismissed the 2019 Appeal.

Legal principles applicable to judicial review

82.  In a judicial review, the court does not step into the shoes of the decision makers.

83.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and 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 there are errors of law or procedural unfairness or irrationality in the decision of the Board”.

84.  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.

Discussion

85.  The Applicant did not advance any grounds for his intended judicial review in the Form 86. In the Supporting Affirmation, the Applicant only stated that he was a genuine non-refoulement claimant who faced all the dangerous problems and harassment and torture in his country. He asserted that he was unable to find any place to stay safely in his country and he certainly would have been killed by his enemies if he did not run away. His problems were getting more and more life-threatening day after day.

86.  He believed that the Director had reached the wrong decision in assessing the 2019 Claim. He complained that the Director rejected the 2019 Claim without proper inquiry and without carefully understanding his situation. He asserted that: “To understand my claim fairly, my immigration officers are invited to tour my country and ask those familiar with his case what real danger I would face if I am returned there.” (§5(b) of the Supporting Affirmation).

87.  The Applicant complained that the Director had rejected the 2019 Claim without any proper inquiry and without carefully understanding his situation. The Applicant provides no particulars or specifics to substantiate these complaints. He said that the Director should have visited his country to understand his claim.

88.  There is no legal or legislative basis to require the Director or the Board to actually visit the risk state or country of origin to conduct any investigation of a non-refoulement claim. While the inquiry is one of joint endeavour, the burden is on the Applicant to prove his claims. The Director and the Board should conduct proper enquiries into current and relevant COI as regard his home country in their assessment and determination of his claims which the Director and the 2019 Board had done in this case.

89.  In the 2019 DOI Decision and the 2019 Board Decision, the Director and the 2019 Board had set out the reasons for their respective findings leading to their decisions in rejecting the 2019 Claim and the 2019 Appeal.

90.  The Applicant did not provide any particulars or specifics as to how the 2019 Board had erred in the 2019 Board Decision in affirming the 2019 DOI Decision, or in what way was the 2019 Board Decision unfair or unreasonable or that the 2019 Board had acted procedurally unfair or irrational, or how did the 2019 Board take into account irrelevant matters or fail to take into account relevant matters.

91.  Having rigorously examined the 2019 Board Decision, the 2019 DOI Decision and the Supporting Affirmation with anxious scrutiny, I am satisfied that the 2019 Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed very high standards of fairness.

92.  The 2019 Board found that the Applicant’s evidence was not reliable for reasons set out in §64 of the 2019 Board Decision. The 2019 Board formed the view that the Applicant’s claim of being falsely charged with the 2 murder cases was not a genuine claim. The alleged ill-treatment suffered by the Applicant did not meet the threshold of “a minimum level of severity”. He was not targeted by the government authorities of Bangladesh. The threats or harms alleged to have been encountered by the Applicant were localized issues. They were not acquiesced to by government authorities or the AL party. COI suggested that reasonable state protection was available and internal relocation was a real possibility for the Applicant in Bangladesh. It was on such basis that the 2019 Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are findings of fact which are exclusively within the province of the 2019 Board, which the court on a judicial review will not interfere save when such findings involved errors of law, procedural unfairness and irrationality. In this case, the court does not detect any error of law in the 2019 Board Decision or procedural unfairness at any stage of the non-refoulement proceedings. The 2019 Board Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The 2019 Board Decision is without fault. The proposed judicial review has no realistic prospects of success.

The Withdrawal Application

93.  The Applicant subsequently filed the Withdrawal Application on 8 July 2024 stating that all his problems had finished. His mother was very sick and he wanted to return home as soon as possible.

94.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of his own volition.

95.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

96.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) 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.”

Conclusion

97.  In the premise and having considered the 2019 Board Decision and the 2019 DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the 2019 Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss his application for leave to apply for judicial review.

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