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HCAL 3342/2019
[2025] HKCFI 3938
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3342 OF 2019
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BETWEEN
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Akhter alias Akthar Hossain |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the applicant be amended to “Akhter alias Akthar Hossain”.
2. The applicant’s application to withdraw the application for leave to apply for judicial review be refused.
3. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated 6 November 2019 and filed on 8 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision made by the Torture Claims Appeal Board (“the Board”) on 24 October 2019 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003342_2019_files/the_Board's_Decision.pdf
2. The Board found that the applicant was unable to establish a real risk pertinent to any of the applicable grounds under the Unified Screening Mechanism (“the USM”), namely BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3] (except Torture Risk[4]). The Board thus dismissed the applicant’s petition and confirmed the decision of the Director of Immigration (“the Director”) dated 4 December 2018 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.
3. The applicant had previously made a torture claim and his claim was rejected by the Director on 4 November 2013. The applicant lodged an appeal against that decision to the Board on 18 November 2013. The Board dismissed his appeal on 14 May 2014. Thus, his Torture Risk had already been assessed and finally determined, and it was not necessary for the Board to reconsider it again in the Board’s Decision.
Amendment
4. The applicant misspelt his own name in Form 86. Thus, on this court’s own motion, the name of the applicant is amended to “Akhter alias Akthar Hossain”.
The applicant’s case
5. It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
6. In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, his creditor, who was the Union Chairman of the Bangladesh Nationalist Party (“BNP”) in the area, would harm or even kill him, as he could not repay a loan of 5.5 Lakh Taka (550,000 Bangladeshi currency) to the creditor.
Oral hearing and withdrawal application
7. At the oral hearing before this court on 17 June 2025, the applicant said that he wrote a letter about 4 to 5 months ago while he was detained in Tuen Mun to withdraw the Leave Application. However, this court did not receive such a letter.
8. The applicant did not have a copy of the letter with him but he confirmed at the hearing that he did want to withdraw the Leave Application and to go back to his own country.
9. When this court asked the applicant to give the reasons for his withdrawal application, the applicant said that his problem was not resolved, but he would relocate to other parts of his own country. However, the applicant did not know whether it would be safe for him to do so.
10. After the hearing and on the same day, this court received the applicant’s withdrawal letter from the Director. The applicant’s withdrawal letter was dated 15 November 2024. He stated in this letter that he wanted to go back to his home country Bangladesh as soon as possible, it was safe for him to go back and he had no money to buy air ticket.
11. Thus, the contents of this withdrawal letter are contradicting to what the applicant told this court at the oral hearing. It is not clear whether it is actually safe or not safe for the applicant to return to Bangladesh. Nevertheless, there was no indication that the withdrawal application was not made out of the applicant’s own volition.
12. With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application.
13. However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 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.”
14. Thus, it is just not right to leave the action at large by granting leave to withdraw to the applicant, especially when he could not confirm whether it would be safe for him to go back to his own country. This court will proceed to deal with the merits of the Leave Application.
15. The applicant’s application to withdraw the Leave Application is therefore refused.
Grounds for judicial review
16. The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
17. The applicant did not advance any ground for his intended judicial review in Form 86. However, in his supporting affirmation dated 6 November 2019, the applicant stated that the affirmation was for leave to apply for judicial review against the decision of the adjudicator of the Board as well as the Director.
18. In a handwritten document attached to his supporting affirmation, the applicant alleged that he had a big political problem in Bangladesh, but the adjudicator as well as the Director cancelled his claim. The applicant also alleged that both the Director and the Board did not investigate properly, and they only asked him some questions but did not consider his education, economic and political status.
Discussion
19. First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as there are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). Thus, this court will only consider the Leave Application in respect of the Board’s Decision.
20. 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 [2018] HKCA 524).
21. In assessing the appeal by the applicant, the Board held an oral hearing on 17 July 2019. The applicant was present and was given the chance to present his case to the Board in person.
22. The Board found that the applicant’s claim was not supported by evidence at all. There were significant inconsistencies between his written and oral evidence regarding the year the loan was taken out, the number of interest payments made and the threats uttered by the creditor, etc. The applicant’s testimony that he travelled between Bangladesh and Hong Kong or China since 2000 and his claim of conducting normal trading business between Hong Kong and Bangladesh was inconsistent with the fact that he overstayed in Hong Kong for over 20 months since 22 November 2001. Thus, the Board had great reservations about his credibility and did not accept his evidence.
23. The applicant testified that the creditor and accomplices had never hurt him and his family members, and no severe violence was ever displayed despite some threatening words were uttered. Thus, the Board found no substantial ground for believing that the applicant would suffer severe ill-treatment or serious harm upon refoulement.
24. The Board considered from extensive country of origin information (“COI”) that although the Bangladeshi police might have an image of non-accountability and corruption, the Bangladesh government had taken steps to show their determination in police reform and combat corruption. The applicant had never reported the creditor’s threat to the police but this did not imply that the police would not help him. The Board concluded that reasonable state protection would be available to the applicant should he need it.
25. The Board then moved on to consider the viability of internal relocation for the applicant. The Board noted from COI that the law allowed freedom of movement in Bangladesh. The applicant had stayed in his sister’s home in Village Baharchar and a hotel in Dhaka before leaving Bangladesh and could stay away from harm during the period. The fact that the applicant was able to depart Bangladesh with his passport without any difficulty indicated that he was not wanted by the police.
26. It was also unrealistic to speculate that the creditor would have the ability or motivation to conduct a nationwide search for the applicant after his relocation. Though uneducated, the applicant had ample experience in selling T-shirts for many years. It would be safe and reasonable for the applicant to relocate internally to cities such as Dhaka to avoid or negate the perceived harm, if any.
27. Although allegedly the creditor was a regional leader of BNP, the creditor lost his position a few years after the loan was taken out. In any event, the Board assessed the applicant’s case as only a case of private money dispute, and there was nothing to establish the existence of any one of the Convention Reasons, which include race, religion, nationality and membership of a particular social group or political opinion.
28. Thus, the Board did investigate and question the applicant for details regarding his claims. It is clear from the Board’s Decision that the Board did consider the applicant’s education, economic and political status. There is no basis for the applicant to allege that the Board did not investigate his case properly or did not consider his education, economic and political status at all.
29. The finding of facts was solely within the ambit of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
30. This court noticed that the adjudicator of the Board, Mr Andrew Ma, signed the Board’s Decision as “Adjudicator of Non-refoulement Claims Petition Office” instead of “Member of the Torture Claims Appeal Board”. This is not a correct description of his capacity.
31. Mr Andrew Ma was a member of the Board and he was determining the applicant’s petition in his capacity as a member of the Board. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to him. He was not making the determination on behalf of the Non-refoulement Claims Petition Office, which does not have any power to determine the applicant’s petition at all.
32. Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme). Thus, only the members of the Board have the powers to hear and determine the applicant’s petition.
33. Nevertheless, the wrong description of his capacity does not nullify the Board’s Decision, as Mr Andrew Ma was indeed a member of the Board and did have the power to determine the applicant’s petition. It is just not right to name himself as an adjudicator of the Non-refoulement Claims Petition Office.
34. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.
35. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
36. For reasons aforesaid, the application for leave to withdraw the Leave Application is refused, and the Leave Application is dismissed.
Dated the 2nd day of September 2025
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( Irene LEE )
for Registrar, High Court
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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 his 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/Handed to the applicant/the applicant’s solicitors
on: 2 September 2025
Applicant’s ref. no:
Nil |
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Sent/Handed 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:
2 September 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 1484/18/12/205/B1781
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 4127/18 (formerly RBCZ/2002092/14)
Department of Justice,
Senior Assistant Law Officers
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of violation of 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 the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
[4] Risk of torture under part VIIC of the Immigration Ordinance, Cap. 115.
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