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

HCAL 2674/2019

[2025] HKCFI 2347

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2674 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

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 13 September 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 11 September 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 22 February 2018 (the “Notice”), refusing his non-refoulement application.

Background

2.  The Applicant is a Bangladeshi national.  He entered Hong Kong illegally on 27 July 2015.  He surrendered to the Immigration Department on 30 July 2015 and made a non-refoulement claim on the following day.  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 application was rejected by the Director’s Notice.  His appeal 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, the Applicant claims that if returned to Bangladesh, he will be harmed or killed by the Awami League (“AL”), and will be arrested by the Bangladeshi police because he was accused of having committed various crimes in his home country. 

4.  The Applicant, now aged 45, was born in Munshiganj, Dhaka, Bangladesh.  He is married.  His wife is living in Bangladesh.  He does not know the whereabouts of his parents and his two siblings.  He received education up to primary 4.  He worked in his family garment business from 1996 to 2015.    

5.  He claimed that he became an active member of Jamaat-e-Islami (“JI”) since 2002 and did not encounter any major difficulties in relation to his work for the party until the ruling AL started targeting JI in 2012.  AL leaders intentionally sabotaged meetings and rallies organised by the JI nationwide in order to cause nuisance to the JI.  He experienced two minor attacks by AL people with weapons (the “minor attacks”). The first attack occurred when he was participating in a rally against the government.  He self-treated his injuries afterwards.  The second attack took place in the party office.  He received medical treatment from a hospital but no hospitalisation was required. 

6.  Between 2012 and 2014, AL members set fire to his home twice, but he was not hurt in the incidents (the “two fire incidents”).

7.  At around 1:30 pm on 5 May 2013, when he was participating in a protest against the AL at Motijhil, some AL members and the police stormed in and attacked the protestors (the “first major attack”). He managed to escape but his friend was shot dead by the police.

8.  On another occasion, when he was attending a rally at Tongi Bari organised by the JI, he and his party people were attacked by AL members with weapons (the “second major attack”).  He again managed to escape.  He self-treated the scratches and bruises on his body at home.  The day after the attack, the JI leader in his village invited him and others to meet at the Tongi Bari Police Station to file a complaint.  When he told the police that their complaint was against the ruling party, the police refused to register their complaint.  Because he argued with the police officers, he was arrested for assault and detained.  He was released on bail on the next day.

9.  In March or April 2015, he was attacked by a group of AL members with weapons (the “third major attack”).  He suffered a severe hit on his head and fainted immediately.  On regaining his consciousness, he found himself in the Tongi Bari Government Hospital where he remained for 15 days. 

10.  For his own safety, he moved to his uncle’s home in Ma-Man-Shing upon his discharge from hospital.  During his three months’ stay there, he did not encounter any harassment from the AL.  His father told him that his sister was raped by a group of men on her way to school, and AL members threatened to kill his father when he was on his way to the police station to file a complaint.  Upon learning the news, the Applicant decided to return to his village but his father stopped him.  He learnt from his father that he was falsely accused of having committed some serious crimes including terrorist activities (the “false accusations”).  On his father’s suggestion, he flew to Mainland China and then sneaked into Hong Kong on 27 July 2015 to avoid trouble from the AL.  

11.  He had travelled to India seven times between May 2012 and March 2015, to Malaysia twice and to Nepal once to avoid problems and harassment by the police.  He claims that state protection is not available because the Bangladeshi police do what the government says.  He does not believe internal relocation viable, as he has been targeted by the ruling party.

The finding of the Board

12.  The Applicant testified before the Board.  The Board found that the centerpiece of his case was solely based on his bare assertions unsupported by any documentary evidence.  Although he was in prison in Hong Kong, he was legally represented.  He had various means including sending letters or telegrams to his family or friends in Bangladesh to obtain documents to substantiate his claim.  If he was minded to obtain such documents, he had plenty of time and opportunities to do so since his arrival in Hong Kong in July 2015 four years ago.

13.  The Board found that there was no evidence to support the various attacks on the Applicant and the injuries allegedly suffered by him.   There was nothing to suggest that the two minor attacks, the first and second major attacks were targeted at him.  Besides, he only suffered some minor injuries in those incidents.  The Board considered that he was not a specific target of the AL in those attacks.  It found, at the highest, the attacks were the AL’s show of power for the purpose of exerting pressure on the JI in settling the grudges between the two parties.  Notwithstanding his allegation that he was the target of AL members in the third attack, the AL members did not kill him, even though they were armed and outnumbered him.  The injuries he suffered, if any, did not attained a minimum level of severity.  Significantly, nothing eventful happened to him when he was staying at his uncle’s home in Ma-Man-Shing, which suggested that the attacks on him, if any, were localised around his home village only.

14.  Despite the attacks, the fire incidents and the accusations, the Applicant travelled to various places intensively between 2012 and 2015.  If the fear and harm from the AL had been so imminent and real, it was inconceivable for him to have travelled abroad and returned on his own free wills so often.  The Board found his pattern of travel was inconsistent with the behaviour of an asylum seeker seeking protection from genuine fear.  The frequent travels also suggested that the physical or psychological injuries, if any, suffered by the Applicant in those incidents were only minimal.  He acted with a stable mind in planning his trip to Mainland China and Hong Kong after the third attack.  Hence, the Board found the ill-treatment or injuries suffered, if any, could not constitute cruel, inhuman, degrading treatment or punishment. 

15.  The Board also noted that the Applicant had not received any ill-treatment by the police when he was in their custody and the police did not come after him after he was released on bail.  His evidence about the false accusations was based solely on hearsay from his father.  He was unable to describe to the Board the details of the accusations, let alone to produce any documentary evidence.  The fact that he could leave Bangladesh using his passport through a proper immigration channel suggested that he was not a target of the police or the Bangladeshi government.  His claim that he would be at risk of harm by AL or police in Bangladesh if refouled was merely his own speculation. 

16.  Assessing the evidence as a whole, the Board did not accept that there was a foreseeable, real and personal risk that the Applicant will be subjected to harm from the AL members or the police in Bangladesh upon his return to Bangladesh.  It found there was no reliable evidence to show that the ill-treatment, if any, attained the minimum level of severity nor was it inflicted by, or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity as to constitute ‘torture’ within the meaning of section 37U(1) of the Immigration Ordinance.  It found his dispute with the AL members was a personal dispute, the ill-treatment he would likely receive from them did not attain the level of persecution and there was no evidence to suggest that it arose out of a reason protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol.  Applying the law applicable to non-refoulement protection, the Board found he was not entitled to protection under any of the applicable grounds under the USM.  Hence, it dismissed his appeal against the decision of the Director in the Notice. 

17.  It should be noted that the Board considered that the perceived risks from the AL people were localised at his locality and as an able-bodied person with years of work experience and no health issues, the Applicant could relocate to other parts of Bangladesh to avoid the risks without undue hardship.  However, as noted from the above, this finding did not form part of the basis of the Board’s Decision. 

Legal principles applicable to judicial review

18.  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

19.  In his Form 86, he advanced the following seven grounds:

(1)  the Board’s Decision and the Director’s decision in the Notice are wrong, unreasonable and unfair;

(2)  the Director erred in failing to give weight to the presence of state acquiescence and that he was tortured at the behest of state law enforcement agencies as well as those high up in the political circle;

(3)  the Board acted unreasonably and was procedurally unfair by placing too much reliance on the country of origin information (“COI”) and failed to take his personal circumstances into account;

(4)  the Director failed to take such argument into account or to give enough weight to such argument and COI supporting his case;

(5)  the Director failed to attain the high standard of fairness required by the Wednesbury test;

(6)  the Board acted improperly and unfairly when assessing his explanations and asking questions that he was not in a position to respond; and

(7)  the Board should have allowed his appeal instead of dismissing it.

20.  Some of these grounds are directed at the Director, some at the Board and some at both the Board and the Director.  The Director’s decision in the Notice was superseded by the Board’s Decision and is not the subject matter of the leave application, see Re Moshsin Ali[6]. For the Applicant’s benefit, the Court assumed that all these grounds are directed at the Board.   

21.  The Applicant said that these grounds were prepared by his lawyer.  They are phrased in general terms without particulars.  At the hearing, he was unable to provide any particulars in support of these grounds. 

Grounds (1) and (7) – the Decision is wrong, unreasonable and unfair, the appeal ought to have been allowed

22.  The Applicant submitted that the Decision is unreasonable and unfair because on his story, he is entitled to protection.  In effect, these are direct challenges of the Board’s finding of fact which is not permissible. The Court will revisit these challenges in its overall scrutiny of the Decision for errors of law, procedural unfairness and irrationality.

Ground (2) – failure to take into account state acquiescence

23.  The evidence of state acquiescence relied on by the Applicant is the first attack on 5 May 2015 in which he claimed one of his fellow JI members was killed by a police shot.  He accused the Board of having failed to investigate deeply into the incident.  The Board had considered this incident fully.  It was an attack by the AL members and the police on the JI members during their protest.  The Board accepted the Applicant’s evidence but found he was not targeted or injured in that incident and there was no evidence of state acquiescence.  It also found no evidence of state acquiescence related to the occasion when the Applicant was arrested at the Tongi Bari Police Station for assault when he attempted to file a report.  He was released on bail.  He was not ill-treated while in police custody and the police did not go after him after his release.  There was no evidence that the Applicant had been tortured at the behest of state law enforcement agencies.  This ground also amounted to a direct challenge of the Board’s finding of fact which the Court will revisit these challenges in its overall scrutiny of the Decision.

Ground (3) – giving too much weight on the COI without taking into account the Applicant’s personal circumstances

24.  The Board had considered COI from independent and credible sources for the purpose of understanding the relevant risks and putting the Applicant’s evidence into context.  The COI revealed that the police was not entirely independent of the ruling party but government has put in effort to improve the professionalism, discipline, training and responsiveness of the police force and to reduce corruption.  But the Board’s Decision was not based on the COI.  It made no finding of availability of state protection and internal relocation which are issues in respect of which the COI has an important bearing.

25.  As for his complaint of the Board’s failure to take his personal circumstances into account, the Applicant said that the Board failed to take into account that he was tortured by the police and that he suffered a head injury.  The injury was occasioned during the third major attack by the AL members.  The Board had taken his head injury into account but found it did not attain the minimum level of severity or did not amount to CIDTP.  The Board had taken into account his personal circumstances in its subsequent analysis of the Applicant’s claim.

Ground (4) – failure to take such argument into account

26.  The Applicant was asked to particularise the “such argument” which he complained the Board had failed to take into account.  He said his argument was that he could not live in Bangladesh, but the Board asked him to relocate to other areas in Bangladesh.  The Board discussed the legal principles relating to internal relocation under paragraphs 89 to 95 of its Decision.  It said that having regard to his personal circumstances, “it was not suggested that he would not be able to reestablish himself in his home state or elsewhere in Bangladesh.”  That was a neutral statement. The Board made no suggestion that the Applicant should relocate to avoid the risk of harm.  Its finding was that the Applicant had failed to prove his fear and risk of harm, the need for relocation did not arise.  This is a finding of fact which the Court may not interfere.  The finding that the Applicant can relocate as opposed to a finding that he should relocate to avoid the risk is a finding of no consequence.  It is irrelevant.

Ground (5) – breach of the high standard of fairness

27.  After the legal principles in the preceding section had been explained to him, the Applicant confirmed he had no complaint about procedural unfairness, but he was not happy with the Decision.  He gave no particulars of the unfairness under this ground.  The Court will revisit this issue in its overall scrutiny of the Board’s Decision.

Ground (6) – assessing his evidence unfairly and asking unfair questions

28.  The Applicant gave no particulars of the unfairness alleged or the unfair questions asked.  In view of his answer in relation to Ground (5), he had no complaint about procedural unfairness.  Further, in answer to the Court’s question, he said that the complaint under this ground related to the situation in the past and there is no issue at present.  He said the situation in Bangladesh today is good for him, it is now safe to return and he did not intend to fight his claim.  Obviously, he was referring to the fall of the AL-led government in August last year.  The Court noted that equally, he did not intend to return voluntarily. 

29.  None of his grounds of judicial review advanced in his affirmation is substantiated.

Overall scrutiny

30.  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 applicable to non-refoulement protection 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 accepted his evidence analysed it carefully, tested it against common sense and inherent probability. It was unable to find there was a foreseeable, real and personal risk that the Applicant will be subjected to harm from the AL members or the police in Bangladesh upon his 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 to non-refoulement protection.  Applying the law to the above finding and some other finding of fact, it found the Applicant had failed to prove his entitlement to 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 or 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

31.  For the above reasons, the leave application is refused.

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

[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)]

[6] [2018] HKCA 549