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

HCAL 2820/2019

[2025] HKCFI 1096

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2820 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.

Observation for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 25 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 18 September 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 22 January 2019 (“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 26 February 2025.  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.

Background

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 national of Bangladesh.  He claimed that he entered Hong Kong from Shenzhen by speedboat on 8 June 2015.  The applicant surrendered to the Immigration Department on 18 June 2015, and raised a non-refoulement claim on 12 July 2015.  The applicant’s claim was considered under all applicable grounds - the 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 a fear that if refouled, he would be harmed or killed by Ramiz, who was a leader of the Awami League (“AL”) in his village, and his associates, when the applicant refused to quit the rival Bangladesh National Party (“BNP”) and paid the AL extortion money.

5.  According to the applicant, he and his brother, Rubel, ran a computer parts shop in Shariatpur, which was around a 10-minute walk from their home in Soto Sandip village.  Rubel joined the BNP around 2008 and the applicant joined around 2010.  After joining the BNP, they began to be harassed by Ramiz and his associates who also demanded extortion money.  Initially, Ramiz’s threats were verbal only.

6.  Towards the end of 2011, the applicant was promoted to become the BNP leader at the village level, and began to organize BNP activities and promote the party in the local area.  When the applicant refused their request to join the AL, Ramiz and his associates threatened to kill him.  In 2012, Ramiz and around 20 AL members used wooden sticks to vandalize the applicant’s shop, and set fire to the shop.  They also beat up the applicant and Rubel.  Both Rubel and the applicant suffered bruises and abrasions all over the body.  A doctor told the applicant that he had sustained serious injuries to his head.  Rubel stayed in the hospital for around 20 days, whereas the applicant stayed for around a month.

7.  After they were both discharged from hospital, the applicant and Rubel went to the police station in Shariatpur twice to report the attack, but the police officers there refused to register their report and asked the applicant and Rubel to leave.  The applicant also sought assistance from his BNP leader but the BNP did not take any actual action.  To avoid harassment from the AL, the applicant and Rubel moved to Dhaka, and then lived alternately in Dhaka and Shariatpur.  After redecoration of the shop, they reopened their computer parts shop.

8.  In September 2014, when the applicant was in Dhaka, the applicant’s family informed him by telephone that around 25 AL members murdered Rubel at their computer parts shop in Shariatpur when Rubel refused to pay them extortion money.  His father closed the shop and his family members went to the Shariatpur police station several times to follow up on the murder case, however the police took no action. 

9.  The applicant did not return home after Rubel’s murder, and stayed in Dhaka.  His family later informed the applicant that the AL members had come to their home to look for him several times, and threatened to kill him if they found him.  Fearing for his personal safety, the applicant decided to leave Bangladesh.  On 23 October 2014, he took a flight to Guangzhou, and stayed in mainland China for around 7 months before taking a speedboat from Shenzhen to Hong Kong.

10.  In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds.  The Director assessed the claimed risk of ill-treatment to have been low because the applicant had not encountered any difficulties when he was in Dhaka or when he took a flight to Guangzhou.  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.

11.  On 15 August 2019, the applicant attended a hearing before the Board, during which the applicant answered questions from the Board.

12.  The Board found that the applicant was not a truthful witness.  At the Board hearing, the Board put to the applicant a number of inconsistencies between his written evidence and his oral statements at the hearing including, for example, inconsistencies on the date of his brother’s death. In its evaluation of the applicant’s credibility, the Board did not accept that the applicant was a member of the BNP or that he and his brother were targeted by the AL.  In conclusion, the Board considered that the applicant would not face any of the proscribed forms of harm should the applicant return to Bangladesh.  Thus the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

13.  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

14.  The applicant’s Form 86 and supporting affirmation did not contain any grounds for seeking relief. 

15.  At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application.  The applicant informed this court that he has formed a relationship with a Philippina, another non-foulement applicant. Out of this relationship, the applicant fathered two children in Hong Kong, a boy born in January 2019 and a girl in October 2020.  He stated that he wished to stay together as a family.

16.  Apart from informing the above background to this court, 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. According to the case reference the applicant provided to this court at the hearing, a Judge in the cases of HCAL1936/2019 and HCAL498/2020 ([2025] HKCFI 475), dismissed the applications for leave to judicial review the decisions of the Board of the applicant’s partner (Manto Jacqueline Medado) respectively issued for herself and on behalf of the son (Hossian Jamil).  These cases are not the subject matters of this Leave Application, and they do not assist the applicant.

17.  The Board’s Decision was arrived at after having carefully examined the applicant’s evidence.  It found that the applicant was not a truthful witness and rejected his claim on that basis, thus the Board concluded that there was no real risk of harm under any of the grounds for non-refoulement.  These are findings of fact, which the court in a judicial review will not interfere with.

18.  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.

19.  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

20.  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