GOFRAN MOHAMMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 14 January 2022 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the following decisions:

a.   The Decision of the Director of Immigration (“the Director”) dated 30 April 2021 (“the Imm Decision”)

b.   Decision of the Torture Claims Appeal Board / Non refoulement Claims Petition Office (the “Board”) dated 22 December 2021 (the “Board’s Decision”).  In the Board’s Decision, the Board rejected the Applicant’s appeal against the Imm Decision.

2.  In the Affirmation in support of the Leave Application (the “Affirmation”), the Applicant exhibited a copy of the Imm Decision and a copy of the Board’s Decision.

3.  The Imm Decision is not susceptible to judicial review as it has been superseded by the Board’s Decision once an appeal against it to the Board has been pursued by the Applicant: see Re Moshin Ali [2018] HKCA 549 at para 45.  Thus, I treat the Leave Application to cover the Board’s Decision only.

4.  The Applicant requested an oral hearing for the Leave Application, which took place on 26 January 2026 (the “Hearing”).  At the Hearing, the Applicant said that he has submitted all the materials to the Court.  He said that the condition in Bangladesh is not under control and his problems have not yet been solved.

Background

5.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail 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.

Discussion

6.  In the Form, the Applicant raised various grounds in support of the Leave Application, some concern the Director in reaching the Imm Decision while the others concern the Board in reaching the Board’s Decision.  I will summarise those relating to the Board’s Decision below, as they are the grounds relevant to the Leave Application:

a.   The Board failed to make sufficient inquiry before finalising the Board’s Decision. The Board should take into account the fact that the Applicant is a torture claimant who has no or limited options to bring his evidence before the Board;

b.  The Board’s Decision is not reasonable or fair.  The Board sent a decision to the Applicant with a wrong date and had to correct it by way of a corrigendum;

c.   The right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights.  In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killing which the Applicant may face if he is deported to Bangladesh; 

d.   The Board failed to give the Applicant sufficient time and chance to arrange relevant evidence for his non-refoulment claim and his appeal; 

e.   The state would be rendered liable to the Applicant as the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence; 

f.   The Applicant was tortured at the behest of and the full collusion of the police and the state law enforcement agencies.  The whole saga of misfortune was a direct result of the misconduct of police officials;

g.   The corruption and incompetency of the administration in Bangladesh is still very serious.  Various human rights organisations have compiled reports to support this;

h.  The Applicant has no choice but to run away from Bangladesh, otherwise he would be harmed or killed;

i.   The Board[2] failed to carry out sufficient research and inquiry into the country-of-origin information (“COI”) and failed to have regard to the relevant and up to date COI.  The Board further failed to consider the COVID-19 condition.  The Board also failed to consider the political activities and failed to consider the supporting documents;

7.  The relevant legal principles are well established.  The Court’s role in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinising 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, COI materials, 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, procedural unfairness or irrationality in the decision of the Board: see Nupur Mst v Director of Immigration [2018] HKCA 524 at para 14.  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: see Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

8.  Having considered all the relevant materials before me, I do not consider the Applicant’s intended challenge against the Board’s Decision to be reasonably arguable with any realistic prospect of success.

9.  I have reviewed the Board’s Decision in detail.  The Board had fully considered the Applicant’s evidence and his grounds for challenging the Director’s decision in refusing his claim for non-refoulment protection.  On the facts, the Board found that the risk of the Applicant being subject to ill-treatment would be low, the Board was not convinced that the Applicant would be at risk of being harmed or killed by his Enemies[3].  The Board considered that the Applicant would receive adequate state protection from the Bangladesh Government and the police, having considered all the COI and finding that there is no evidence to suggest that there is any linkage between the Enemies and the Bangladesh Government.  In addition, the Board considered that there were internal relocation options available to the Applicant.  On the above bases, the Board found that the Applicant would not face any Persecution Risk, BOR 2 Risk, BOR 3 Risk or Torture Risk[4] if he returns to Bangladesh and rejected the Applicant’s appeal: see the Board’s Decision paras 15-43.  I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision.

10.  With respect to the Applicant’s complaint in paragraphs 6 (a), 6 (d) and 6 (i) above that the Board has not conducted sufficient research and inquiry into the evidence, as noted by the Board in paragraph 15 of the Board’s Decision, it has considered all the evidence before it, bearing in mind the legal principles concerning assessment of evidence.  I am not satisfied that the Applicant was not given sufficient opportunity to present his case or evidence to the Board.

11.  With respect to paragraph 6 (b), contrary to what the Applicant said, he did not attach any “corrigendum” to the Form or the Affirmation. In any event, any mistake in the date of the Board’s Decision which has been corrected by a corrigendum would not affect the correctness of the Board’s Decision.

12.  With respect to paragraph 6 (c), the Board has considered the Applicant’s claim based on right to life in its Decision, but found that the Applicant’s claim under this head failed on the facts upon analysing the evidence in detail: see the Board’s Decision paras 22-32.

13.  With respect to paragraphs 6 (e) to 6 (h), the condition of the Bangladesh Government and police have already been considered by the Board: see the Board’s Decision paras 31 (b) to (g).  As to the alleged SARS and COVID-19 conditions, they are unparticularised, and I do not consider them to be relevant to the Leave Application.

14.  Leave application of this sort is meant to be a filtering process and this Court is not expected to give elaborated reasons for its decision: see Re Zunariyah [2018] HKCA 14 at para 23.  I have considered all the relevant materials in reaching the present decision.

Conclusion

15.  For the reasons stated above, I will dismiss the Leave Application.

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