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HCAL 2995/2019
[2025] HKCFI 1582
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2995 of 2019
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BETWEEN
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Dutta Amar |
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 |
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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:
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 11 October 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 20 September 2019 dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 19 September 2018 (the “Notice”), refusing his application for non-refoulement protection.
Background
2. The Applicant is a Bangladeshi national, now aged 39. He surrendered to the Immigration Department on 26 August 2015, claiming to have sneaked into Hong Kong on 24 August 2015. He then made a non-refoulement claim by written signification on 12 May 2016. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.
The Applicant’s case
3. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (the “NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims that if returned to Bangladesh, he will be harmed or killed by Muslims villages who wanted to take over his father’s land and for his being a Hindu because of their religious differences.
4. The Applicant used to live with his parents in a village in Comilla. He had completed education up to year 10. He worked as a salesman in grocery stores. He said there were 300 families in his village, of which 38 families were Hindus and the remainder were Muslims. The relation between the two groups had always been poor.
5. In around 1995, the Muslim villagers tried to take over the land belonging to the Applicant’s family on which a Hindu temple was built. The Hindus resisted. His family home and the temple were vandalised by the Muslim villagers (the “1995 attack”). His father lodged a complaint with the police and the police gave them protection until 2000 when the officer-in-charge was transferred and replaced by another.
6. In 2001, the Muslim villagers again attacked the Hindus, destroyed the temple and took over the land belonging to his family (the “2001 attack”). The Applicant said that thirty of the Hindu families left for India, while the remaining eight families including his left for other parts of Bangladesh. Since 2001, he had been moving around Bangladesh with his family to avoid the threats from the Muslims in his home village.
7. In 2002, the Applicant’s family filed a claim against the local Muslim leaders including Atikur Rahman about their seizure of his father’s land. The Applicant said Atikur Rahman was a senior member of the Bangladesh nationalist Party. Despite the Applicant and his family moved every five years, his Muslim enemies came to his workplaces in different places in Bangladesh to demand his family drop their court case and give up the land. They also threatened to kill him if he returned to his home village. The Applicant said he became targeted rather than his father as his father was already very old at the time.
8. The Applicant’s family complained to the police several times, but the police took no action. He said he had also tried to relocate to India, but was turned down by his relatives. Hence, he sneaked into Hong Kong to seek protection, while his parents stayed in their home in Comilla. His parents told him that the Muslim leaders had come to their home to locate him, but they did not inflict any violence on his parents. The Applicant does not think he could relocate to other parts of Bangladesh because Atikur Rahman can find him easily through his BNP connections.
The finding of the Board
9. The Applicant testified before the Board. In support of his claim about the 2001 attack, he submitted a number of documents relating to a police investigation and subsequent court proceedings regarding the arson of the Applicant’s family home and the destruction of their Hindu temple in 1995. When the difference in timing was put to him, he insisted that he had seen the temple destroyed with his own eyes in 2001 or 2002. But, he offered no response to the Board’s question whether the court documents were incorrect.
10. He was asked where he had lived after leaving the village following the 2001 attack, he said he lived separately from his parents who remained in the village until 2006. He was asked why the Muslims would have a problem with him about the land given that it belonged to his father. After giving some irrelevant answers, he eventually claimed that he was targeted because they could not find his parents as they had left the village. This is inconsistent with his evidence in his NCF that he had been moving around in Bangladesh with his family every five years. He denied he had said so and insisted that he had already left the village two years before his family did and that he worked and lived in a dormitory with other friends. He said he should have written “not with my family” in the NCF.
11. In view of the above and numerous other significant differences between his evidence and his testimony as to what are purportedly his personal live experience, the Board had doubts about his general credibility and the credibility of his claim to have left his village because of threats and harassment by the Muslim villagers, and also his claim that such threats and harassments continued until he left Bangladesh in 2005. It considered his claim that he was targeted rather than his father implausible as the Board could not accept the Muslims could locate him anywhere in Bangladesh and yet unable to find his father. It also rejected his claim that he was targeted because his father is considered too old. In conclusion, the Board found he has not established any factual basis for a finding that he faced a real risk that he would suffer serious harms at the hands of the Muslim villagers, should he return to Bangladesh. 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, it dismissed his appeal against the decision in the Notice.
Legal principles applicable to judicial review
12. 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[5].
Grounds for judicial review
13. 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 and left it to the Court to look for such vitiating elements in the Decision for him.
14. However, in his supporting affirmation, he annexed a four-page document, titled “Grounds on which relief is sought”. They contain general principles, general complaints of unreasonableness or irrationality, breach of duty of care owed to an unrepresented claimant, reliance on outdated cases and information from non-credible sources, etc. They are all lacking in specifics and particulars. When asked, he was unable to provide particulars. He only submitted that the conflict between Muslims and Hindus still exists in his village and he would suffer hardship for being in the minority. He said he does not want to go back to Bangladesh and wants to stay in Hong Kong. These are just statement of facts and statement of his wish which do not constitute arguable grounds of application. 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
15. 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. It assessed the Applicant’s evidence carefully, tested it against common sense and inherent probability. It found him incredible as regards the core issues of his claim. It found numerous and significant inconsistencies between his evidence in the NCF and in his testimony which go to the case of his claim. It found the Applicant is not a witness of truth. It did not accept he had proved the fundamental basis of his claim and that he would face a real risk that he would suffer serious harms at the hands of these Muslim villagers, should he return to Bangladesh. It gave full reasons for its finding. It was on that basis that the Board found the Applicant 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 findings 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
16. For the above reasons, the Applicant’s leave application is refused.
Dated the 22nd day of April 2025
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( Seline Sze)
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 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 22/04/2025
Dutta Amar
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 22/04/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 13664/18/10/6/B1575
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3065/18 (formerly RBCZ 12038/16) [T3S130]
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[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] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
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