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HCAL 2857/2019
[2025] HKCFI 2725
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2857 of 2019
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Md Safiullah Khan |
Applicant |
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and
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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Putative 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 Levy:
1. The Form 86 is amended on the court’s own motion.
2. The Leave Application be dismissed.
Observations for the Applicant:
Introduction
1. By prescribed Form 86 filed on 27 September 2019, the applicant applied for leave to apply for judicial review (“Leave Application”) of the decision of the Torture Claims Appeal Board (“the Board”) dated 15 August 2019 (“Board’s Decision”). The Board had dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 13 July 2018 (“Director’s Decision”) who refused the applicant’s claim for non-refoulement protection.
2. As no request for a hearing was made, this court will determine the Leave Applicant on paper without a hearing: O.53, r.3 (3) of the Rules of the High Court.
3. In the Form 86, the applicant named the Board the proposed interested party. As the Director should have been the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.
Background
4. The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.
5. The applicant is a national of Bangladesh. He arrived in Hong Kong as a visitor on 14 June 2006. On 19 June, he lodged a claim for asylum with the United Nations High Commissioner for Refugees (“UNHCR”), but was rejected on 19 November 2008. On 13 June 2013, he lodged his non-refoulement claim, covering all applicable grounds other than the risk of torture: BOR 2 risk[1], BOR 3 risk[2] and persecution risk[3] under the USM.[4] The claim was based on a fear of being harmed or killed by members of the Bangladesh National Party (“BNP”) because of the applicant’s support for the opposing party, Awami League (“AL”) if refouled.
6. According to the applicant, between May 2005 and February 2006, he was an ordinary member of AL, and participated in meetings held in the village. BNP was the ruling party. The applicant encountered three incidents before he felt it was no longer safe for him to remain in Bangladesh.
7. The 1st incident was in 2005, during which the applicant was beaten up by 10 to 12 members of the BNP while he was playing games with fellow of the AL members in the party’s club premises. The BNP members also damaged properties of the club. The applicant lost consciousness. His limbs were swollen and the body was bruised. It took about 10 to 15 days for him to fully recover. After the 1st incident, the BNP members threatened the applicant on many occasions that if he did not join BNP, they would kill him or make false accusations against him. The applicant believed that the BNP members wanted to recruit the applicant as they wanted to expand their party.
8. The 2nd incident took place one evening in mid-January 2006. The applicant along with several AL members were assaulted with hockey sticks and wooden sticks by 10-12 BNP members whom were believed to be the same assailants in the 1st incident. The applicant took 15 to 20 days to recover from the injuries he sustained.
9. In the meantime, one of his cousins was kidnaped and tortured by the BNP members around March or April 2006. The cousin was later sentenced to two years’ imprisonment for a fabricated charge against him.
10. After the murder of the BNP chairman on 26 March 2006, the applicant found out that he was on the list of accused persons for the murder. Although the applicant had nothing to do with the murder, he went to hiding in his aunt’s house, which was about 15 miles away from his home.
11. The 3rd incident happened after the applicant’s return home from hiding on 11 June 2006. He was abducted by the BNP members, whom the applicant recognized as the same previous BNP assailant. The applicant was taken to a house and assaulted. They threatened to kill the applicant if he refused to confess to the murder of their chairman. Owing to the torture, the applicant signed on a piece of paper admitting to the involvement of the crime. The applicant lost consciousness. When he regained consciousness the next day, he was on the roadside. His relative took him back to the house. The applicant sustained bruises and swellings all over his body and he could not remember how long it took him to recover on this occasion. The applicant’s father felt that it was no longer safe for the applicant to stay in Bangladesh, and he was arranged to leave the country for Hong Kong.
12. The Director decided against the applicant’s claim on the above-mentioned grounds. The Director assessed that the level of risk of the applicant being harmed or killed by members of BNP and the Bangladeshi police upon his return to have been low. The Director further found that both state protection and the option of internal relocation were available. Hence, the Director rejected the claim and the applicant appealed to the Board.
13. On 29 May 2019, the applicant attended a hearing before the Board. At the hearing, the applicant answered the Board’s questions with the assistance of an interpreter. Based on the totality of the evidence, the Board had doubts about the truth of the applicant’s claims. It did not accept that the applicant was ever an actual or perceived supporter of the AL or was singled out for harm. Neither did the Board accept that the applicant was ever accused of murdering the chairman of the BLP. In conclusion, the Board did not accept that the applicant faced in the past, or faced in the reasonably foreseeable future, a real chance of harm of any type in Bangladesh should he return there. The Board therefore dismissed the appeal and confirmed the Director’s Decision.
Legal principles applicable to judicial review
14. 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
15. The applicant’s Form 86 as well as his supporting affirmation did not contain any grounds for seeking relief.
16. The Board’s Decision was arrived at with the benefit of a hearing in which the applicant was able to clarify matters raised by the Board. After having examined all of the applicant’s evidence, the Board doubted the truthfulness of the centerpiece of his evidence. This is the finding of fact, which the court in a judicial review will not interfere with.
17. Having rigorously examined the Director’s Decision and 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 the three grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness or irrationality in the Board’s Decision. The Board had properly examined all relevant information and matters that it raised with the applicant at the hearing. The applicant has failed to identify any errors the Board has allegedly made.
18. 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: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.
Orders
19. The Form 86 is amended on the court’s own motion.
20. The Leave Application be dismissed.
Dated the 7th day of July 2025
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(Alfred Chan)
for Registrar, High Court |
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 7/7/2025
Md Safiullah Khan
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 7/7/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.: USM 12683/18/7/433/B1423, TCAB 539/13/6/64/B205
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1880/18 (formerly RBCZ 2002385/14), QA T/C 135/10 Pt.2 (Formerly RBCZ 289/07)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] This refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”).
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR.
[3] This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[4] This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293.
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