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HCAL 2987/2019
[2025] HKCFI 1931
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2987 of 2019
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Hossain Mohammad Jakir |
Applicant |
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And |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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And |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
1. Leave to amend the Form 86 be granted; and
2. Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 10 October 2019 for leave to apply for judicial review (the “leave application”) of:
(1) the decision of an immigration officer on behalf of the Director of Immigration (the “Director”) made on an unknown date but notified to him on 30 July 2019 (“Decision (1)”), and
(2) a decision of an immigration officer on behalf of the Director in his Notice of Decision dated 12 November 2018 (the “Notice”), refusing his application for non-refoulement protection under BOR 2 Risk[1], BOR 3 Risk [2] and Prosecution Risk[3] grounds (“Decision (2)”).
2. In his supporting affirmation dated 8 October 2019, he complained that the decision of Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) has been reached unfairly. He did not identify the decision of the Board by date nor did he supply a copy of the decision which he sought to judicially review.
3. Enquiries with the Board and the Director revealed that he had made a non-refoulement claim by written signification on 26 May 2015. The claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), and dismissed by the Director by his Notice of Decision dated 12 November 2018, ie Decision (2) in the Notice referred to in paragraph 1. He appealed. His appeal was dismissed by the Board’s Decision dated 23 September 2019 (the “Board’s Decision”). At the hearing, the Court explained the procedural background of his leave application to him. He confirmed that was the case. Hence, leave was granted to amend the Form 86 by making the Board’s Decision the decision in respect of which relief is sought, the Board the proposed respondent and the Director the interested party.
4. Decision (1) could not be identified. In any event as it is an alleged decision of the Director in the non-refoulement context, it is a first-tier decision in a two-tier decision making process. As such, it is not susceptible to judicial review: see Moshsin Ali[4] and Hafeezullah[5]. That part of the leave application is struck out for want of particulars.
5. The Form 86 in respect of this leave application and that in respect of HCAL 2977/2019 appear to be made from the same template. Both applications were filed on the same date and referred to a decision of the Director of an unknown date but notified to the applicants on 30 July 2019 and to a decision of the Director in respect of three risks which was the case in HCAL 2977/2019, but the decision of the Director in this case is in respect of four risks. The coincidence suggests the applications were made with ill-motive to mislead the court and waste its time for the purpose of delaying their refoulement process. The Court gave him the benefit of doubt that this is not the case. Instead of striking this leave application out for want of subject matter for review, in the discharge of its high standard of fairness, the Court identified the decision in respect of which he may wish to seek relief and allowed the amendments.
The Applicant’s case
6. The Applicant is a Bangladeshi national, now aged 35. He sneaked into Hong Kong from Mainland China on 26 May 2015. He was arrested on 27 May 2015 and made an application for non-refoulement protection on 29 May 2015. His claim for protection was refused by the Director’s Notice. His appeal against the Notice was dismissed by the Board’s Decision. He now seeks leave to apply for judicial review of that Decision.
7. The Applicant’s original claim before the Director was that he was in fear of being killed by people of the Awami League political party (the “AL”) because of rivalry between the AL and the Bangladesh Nationalist Party (the “BNP”) to which he belonged. The Applicant joined the BNP in early 2014 and became a member in the middle of the same year. He actively participated in all the meetings and rallies. In mid-2014, he was involved in a fight between 2,000 people of the AL and the BNP. In his non-refoulement claim form, he said he suffered bruises and swellings on his limbs which were not severe. At the screening interview less than a month later, he claimed he suffered a broken right hand and had a cut wound on his right knee. He later learned that one of the AL people was killed during that fight.
8. A few days later, a few AL people looked for the Applicant at his home and threatened to kill him if he continued to participate in BNP activities. Three months later, he was attacked by four masked strangers carrying wooden sticks. His right shoulder bone was fractured and he sustained a cut wound on his right knee and bruises on his left knee. His wound was stitched up in a pharmacy and his shoulder was bandaged in a hospital. While resting at home, some AL people came to look for him on several occasions. Every time, his parents lied to them by saying that they did not know his whereabouts. On some occasions when the AL people tried to enter his home, he managed to escape and hid himself.
9. At the hearing before the Board, the Applicant raised a new claim of fear of harm from his uncle arising from a land dispute which started some six months before the hearing. His uncle threatened to kill every member of his family unless they agreed to surrender the land and the house on it to him. His family members will move out soon. He said there was no point to report the threat to the police because his uncle is a member of the AL. Presumably, he was suggesting that the AL had control over the police.
The finding of the Board
10. The Applicant testified before the Board. The Board accepted his evidence and assessed his claim on the basis of the factual case as he asserted, except for the non- availability of state protection and infeasibility of internal relocation. The Board considered the fight in mid-2014 a mass fight between two rival political groups in which the Applicant was not personally targeted. In any event, he escaped and only suffered minor injuries.
11. As for the attack which occurred some three months later, the Board found there was no evidence to support the Applicant’s belief that the assailants were AL people. If they were, the Board thought the Applicant would have been killed (or more seriously injured) pursuant to their threat, but he was only hit and punched.
12. As for the false accusation about his involvement in the death of one of the AL people in the fight, it was hearsay and the Applicant did not provide any further information and evidence to support his belief in its truth. Furthermore, he was able to leave Bangladesh twice since learning about the accusation. This suggested that he was not targeted by the authorities for the death. Hence, the Board gave little weight to that piece of information.
13. As for the land dispute, it occurred after the Applicant had left Bangladesh. Further, according to Applicant, the dispute will be resolved soon as his family members were about to move out and to surrender the land to his uncle. The Board considered it irrelevant.
14. The Board found on the basis of authoritative and credible country of origin information (“COI”) that while there are problems about corruption and abuse of power in the Bangladeshi police force, the government is taking active steps to fight corruption and improve professionalism, accountability and discipline in the police force and is making it easier for the public to report corruption and neglect of duty on the part of the police. It found reasonable state protection would be available to the Applicant on his return to Bangladesh. Having regard to the geographical size and population size of Bangladesh, the Board found it difficult for the AL people to find him if he relocates to another area in Bangladesh. It also found, given his youthfulness, it would not be difficult for him to survive in the new location. Hence, it rejected his argument and held that he could also avoid the risk of harm from the AL people by internal relocation.
15. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM. Hence, the Board dismissed his appeal against the decision in the Notice.
Legal principles applicable to judicial review
16. 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[6].
Grounds for judicial review
17. After the legal principles in the precedent section had been explained to him, the Applicant said he had no complaint above errors of law, procedural unfairness or irrationality in the Decision. As mentioned above, he had made some vague, non-specific and un-particularised allegations of unfairness and his disagreement with the Board’s finding about availability of state protection. In respect of the allegation of unfairness, apart from being un-particularised, he confirmed there was no procedural unfairness in the Decision. As for his disagreement with the Board’s finding about availability of state protection, it is a challenge against the Board’s finding of fact based on the COI which is a matter solely within the province of the Board and which the court in a judicial review will not interfere.
18. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and irrationality in the Decision.
Overall scrutiny
19. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the 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 a very high standard of fairness. The Board conducted a rehearing. Except for availability of state protection and feasibility of internal relocation, the Board assessed the Applicant’s claim on the basis of the case as he asserted. The Board’s finding on state protection and internal relocation was based on the COI. It gave reasons for its finding. The finding is a finding of fact solely within the realm of the Board, which the court in a judicial review may not interfere. On the basis of the Applicant’s evidence, it found he had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. These are mixed finding of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law, procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
20. For the above reasons, the Applicant’s leave application is amended and the leave application as amended is refused.
Dated the 13th day of May 2025
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( Seline Sze )
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 13/05/2025
Hossain Mohammad Jakir
Applicant’s ref. no:
Nil
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 13/05/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 14625/18/11/468/B1731
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3992/18 (Formerly RBCZ/11772/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Risk of violation of the 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 Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] CACV 54 of 2018
[5] HCAL 2977/2019
[6] [2018] HKCA 524 at [14(1)]
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