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HCAL 3612/2019
[2025] HKCFI 2531
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 3612 OF 2019
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BETWEEN
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Rahoman Maydul |
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 (Non-refoulement Claims) Teresa Wu:
The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 (“Form 86”) dated 4 December 2019, the Applicant applies 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 15 November 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 16 October 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).
Background
2. The Applicant’s personal background, his case and claim, the facts alleged by him to show that he would be harmed or killed in Bangladesh by the people of Awami League (AI), and the immigration and procedural history, etc. have been comprehensively set out in the Board’s Decision. It is not necessary for me to reiterate them here. For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions herein.
Discussion
3. The Applicant’s intended challenge of the Board’s Decision on the grounds below is not reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676):
(1) “The Respondent had unlawfully fettered his discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement.”
(2) “The Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal.”
(3) “The Respondent’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness.”
(4) “The Respondent failed to meet the greater care and duty owed to a selfrepresented claimant.”
(5) “The Applicant believes he was not given a fair opportunity to keep forward his submissions in an oral hearing nor he was invited to submit written submissions. When the Applicant filled in the Appeal Form, the Applicant was only asked to write grounds for appeal but that will not count as an opportunity to reply to submissions made by the representatives of the Director of Immigration.”
(6) “Furthermore, the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized or it is simply hearsay. They have also relied on some cases which are fairly outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations that it is safe for him to return back to his country of origin.”
4. In gist, the Applicant’s alleged fear of returning to Bangladesh came from his enemies from AL. It was his case that he would be killed upon his return to Bangladesh. He also claimed that he was in fear of his paternal uncle. He confirmed, at the Hearing before the Board, that AL enemies and Uncle were his only sources of fear and that he was not in fear of any other party, be it the Bangladeshi police or the government (see §7 of the Board’s Decision).
5. Having considered all the evidence submitted by the Applicant, the Board was not satisfied that the material allegations of the Applicant were supported by objective evidence and made the following findings (see §§58, 77-86 of the Board’s Decision):
(1) The nature and low intensity of ill-treatment experienced from the AL people and/or the Uncle in the past suggested that there was only a minimal risk of harm in the future if the Applicant were to return to Bangladesh.
(2) The Board was not convinced that there was a real and personal risk of the Applicant suffering serious harm in the future, if he were to be refouled.
(3) The AL people and Uncle were non-state actors, acting solely in their purely personal and private capacities, without any involvement of any public officials or individuals acting in an official capacity at any stage.
(4) There was no, or no reliable evidence that the government, state and/or other authorities in Bangladesh had acquiesced to the alleged ill-treatment of the Applicant, or that a complaint was made to the police, the higher authorities or to the court of the various threats and assault.
(5) There was no evidence that the Applicant had suffered physical and/or mental harm of the requisite severity as defined to constitute “torture”.
(6) There was no, or no reliable evidence that the alleged perpetrators had ill-treated the Applicant with the intention specified in the definition of torture.
(7) There was no, or no reliable evidence that the alleged ill-treatment of the Applicant had any relevance to the interests and/or benefits of the Bangladesh government.
(8) There was no, or no reliable evidence that the Applicant had a well-founded fear of persecution.
(9) There was no, or no reliable evidence that the state of Bangladesh was unwilling or unable to protect the Applicant, who left the country with his own passport.
(10) There was no, or no reliable evidence to show that the state of Bangladesh was unwilling to help the Applicant for a RC reason.
6. Based on these findings, the Board rejected the Applicant’s claim for non-refoulement on the grounds that there were no Persecution Risk, BOR 3 Risk, BOR 2 Risk, or Torture Risk (see §§126-129 of the Board’s Decision):
(1) The Applicant failed to show that he had a well-founded fear of being persecuted for a RC reason.
(2) The Applicant had not shown that there were substantial grounds for believing that without protection, there would be a real risk or substantial grounds for believing that he would be subjected to a real risk of prohibited treatment, namely, torture and CIDTP. There was also sufficient state protection in Bangladesh.
(3) The Board failed to see that there was a real chance that the people from AL or Uncle would go after the Applicant to kill him, or that if they did, the state of Bangladesh would be unable or unwilling to protect him.
(4) None of the statutory elements of section 37U of the Ordinance were considered by the Board to be satisfied.
7. It is well-established that the merits of a non-refoulement claim are matters for the primary decision-maker and the Court should not usurp the role of the Board in the absence of valid public law grounds (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, etc.).
8. I observe that the grounds stated above have been taken almost word for word from other cases without any appropriate adaptation. It is inadequate for the Applicant to make vague assertions. None of these grounds provide useful details, specifics, or elaborations to demonstrate how they apply to this case or how the Board erred in its decision-making. It is unclear in what way the Board allegedly unlawfully fettered its discretion, or acted in a procedurally unfair manner. The Applicant has also failed to identify, with sufficient clarity, the sources of news or COI materials relied upon by the Board that were either unrecognized or outdated.
9. On the other hand, I have considered the Board’s Decision with rigorous examination and anxious scrutiny, applying an enhanced standard in light of the seriousness of the issues involved. I am satisfied that the Board had correctly set out the law and key legal principles relating to the Grounds, the burden of proof and standard of proof, identified the issues and observed the very high standard of fairness.
10. The Applicant has not provided specific instances to substantiate his complaint that he was not given the opportunity to present his submissions before the Board. There is no record of obstruction. In fact, the Board’s Decision indicates that the Applicant confirmed there was nothing further for him to add to the information provided in the Hearing Bundle (see §10 of the Board’s Decision).
Conclusion
11. For these reasons, I make an order that the Leave Application be dismissed.
Dated the 4th day of July 2025
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(Allen 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 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 4/7/2025
Rahoman Maydul
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 4/7/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 14092/18/10/434/B1634
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3593/18 (Formerly RBCZ 10475/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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