KAMAL MOHAMMAD MOSTAFA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2793/2019

[2025] HKCFI 1712

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2793 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 the Applicant being absent in open court;

The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 23 September 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 / the Non-Refoulement Claims Petition Office (“Board”) dated 12 September 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 14 December 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim.

2.  Pursuant to the applicant’s request for a hearing of the Leave Application, this court held a hearing on 10 April 2025. A notice of hearing with a reminder[1] of the consequence of absence dated 17 March 2025 was sent to the applicant’s last known address by ordinary post. The applicant did not turn up at the hearing. Telephone calls were made to the applicant’s given telephone number several times before the hearing, but to no avail. The information before this court shows that the said notice of hearing has not been returned undelivered through the post.

3.  In the circumstances, this court will dispose of the Leave Application according to the materials already placed before the court.

Background

4.  The background as taken from the respective decisions of the Director and the Board referred to above can be briefly stated as follows.

5.  The applicant is a national of Bangladesh. He claimed to have entered Hong Kong from mainland China by boat without permission on 20 August 2015. On 27 August 2015, he surrendered himself to the Immigration Department. On 24 September 2015, the applicant raised a non-refoulement claim before he was released on recognizance. The applicant’s claim was considered under all applicable grounds - the risk of torture[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5] under the USM.[6] The claim was based on a fear that if refouled, he would be harmed or killed by his enemies in the Awami League (“AL”), due to his support for the rival Bangladesh National Party (“BNP”) and refusal to accede to their demand to pay extortion money.

6.  According to the applicant, between 2012 and late 2014, he was violently assaulted and robbed by the AL supporters for about 7 to 10 occasions. In the last incident in late 2014, when the applicant was at home with his wife and children, a group of approximately 15 armed and masked AL supporters forcibly entered the applicant’s house. They tied the applicant to a chair and threatened to kill his entire family if he did not pay the money they demanded. The AL people group also told the applicant that they were targeting him because he refused to leave the BNP. They only fled when the police was alerted by the screams of the applicant’s oldest son whose ankle was injured by the AL people. The police did not investigate the incident. The BNP also did not provide help to the applicant. Thus, the applicant did not feel safe in Bangladesh and decided to flee his country.

7.  In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds. Hence, the applicant’s appeal to the Board against the Director’s Decision.

8.  On 16 July 2019, the applicant attended a hearing before the Board in person. At the Board hearing, the applicant gave testimony with the assistance of a Bengali language interpreter, and answered questions from the Board.

9.  The Board found inconsistencies in the material aspects of the applicant’s evidence. Thus, the Board found that the applicant did not face any claimed risks. It dismissed the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

10.  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

11.  In the applicant’s Form 86, the applicant averred that the Board was in breach of procedural fairness in having failed to use care and duty owed to an unrepresented claimant, and that the Board’s Decision is unreasonable and irrational. In his supporting affirmation, the applicant further averred that the applicant was given insufficient time to prepare the hearing before the Board, and that the Board relied on news sources that were not officially recognized and outdated; or were hearsay.

12.  The applicant’s grounds or assertions contained in his Form 86 and the supporting affirmation are bare assertions. At the hearing before the Board, the applicant was assisted by an interpreter. There is no indication from the Board’s Decision that the applicant had problem in understanding the documents in English or did he inform the Board that he would require more time to prepare for the hearing. He has not identified as to 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.

13.  The Board’s Decision was arrived at after having carefully examined the applicant’s documentary and oral evidence. The Board’s rejection of the applicant’s account of events due to the significant inconsistencies in the material aspects of his evidence and its finding of the absence of any real risk of harm under any of the grounds for non‑refoulement are findings of fact, which the court in a judicial review will not interfere with.

14.  Having rigorously examined 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 in the Decisions of the Director and the Board. I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks.

15.  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

16.  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