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

HCAL 2417/2019

[2025] HKCFI 644

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2417 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 oral submissions by the Applicant in open court;

The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 21 August 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 (“the Board”) dated 9 August 2019 (“Board's Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 31 August 2018 (“Director's Decisions”) rejecting the applicant’s non-refoulement claim.

2.  As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 24 December 2024.  The applicant attended the hearing in person.  After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

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

4.  The applicant is a Bangladesh national.  He arrived in Hong Kong on 26 December 2005 and departed to Mainland China on the same day.  He entered Hong Kong again on 8 January 2006 from Mainland China and was permitted to stay as a visitor until 22 January 2006.  However, the applicant did not depart and overstayed.  He was arrested by police on 1 November 2007 for overstaying.  On 17 November 2007, the applicant lodged a torture claim, which was rejected by the Director on 12 December 2013.  On 6 February 2014, the applicant lodged a non-refoulement claim, and the applicant’s case was considered under all applicable grounds other than a risk of torture^[1] - BOR 2 risk^[2], BOR 3 risk^[3] and persecution risk^[4] under the USM.^[5]  The claim was based on his fear that if refouled, he would be harmed or killed by a man named Mozzammel who was a supporter of the Bangladesh Nationalist Party (“BNP”) over a road building contract obtained by the applicant’s uncle.  The applicant and his uncle were supporters and members of the Awami League (“AL”).

5.  The applicant stated that after his uncle had obtained the road building contract, he helped the latter to manage the contract.  Politicians from the rival party, BNP, especially Maozzammel, wanted the building contract to end. They started to seek protection money from the applicant for the construction work, and later even abducted and assaulted the applicant.  After a promise was made that the applicant would leave the locality, the applicant was released. After his release, the applicant’s uncle informed the applicant that it was not safe for him to stay, and made arranged for him to leave.  The applicant was arranged to go to Dhaka before departing the country to come to Hong Kong.  The applicant claimed that after he had left his country; he received information that the problem back home had escalated.  His three brothers all fled the country.  He stated that the danger persisted. 

6.  In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds.  The Director found that the level of risk and harm had not attained a minimum level of severity as AL has become the ruling party in Bangladesh, and found that the applicant’s concerns were only bare speculation with no evidence in support.  After having considered the country of origin information reports (“COI”), the Director was satisfied that state protection was available and that internal relocation alternatives were available and reasonable.  Hence, the applicant’s appeal to the Board against the Director’s Decision.

7.  On 12 July 2019, the applicant gave evidence before the Board.  During the hearing, he adopted the evidence contained in his Torture Claim Form, the Supplementary Claim Form, and the Records of Interview with the Immigration Officer.  In the Board’s Decision, the Board found that the applicant’s intention to seek non-refoulement protection in Hong Kong suspicious as the applicant did not raise the non-refoulement promptly.  The applicant did not explain for the delay.  The Board also found that the applicant’s asserted risks were not substantiated in view of the fact that the uncle’s road building contract had ended upon the latter’s death.  It was unlikely that the BNP members or the followers of Mozzammel would continue to target the applicant. In any event, the Board found that the applicant’s problem with Mozzammel was purely a private matter.  After having considered the COI, the Board also found that reasonable state protection was available to the applicant.  The Board concluded that the applicant faced no genuine and substantial risk of being subjected to any harm if refouled to Bangladesh.  The Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

8.  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

9.  In neither the applicant’s Form 86 nor his supporting affirmation did the applicant provide any grounds for the intended challenge.  At the hearing, this court had asked him whether he had any grounds he wished to submit in support of the Leave Application.  The applicant confirmed that he had nothing further to say.  Since the applicant was acting in person, this court asked him what mistake or error he believed the Board had made.  He repeated again that he had nothing further to add.  It is plain that the applicant has not condescended to any particulars, in the Form 86 or otherwise, 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.

10.  The Board’s Decision was arrived after examining the applicant’s evidence in detail.  It found that the applicant’s claim suspicious and the alleged problem was purely a private matter.  These findings plus the Board’s finding of the availability of state protection are findings of fact, which the court in a judicial review will not interfere with.

11.  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’s evidence was not credible and that the applicant failed to discharge his burden of proving the asserted fears and risks.

12.  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

13.  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

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