HCAL 2797/2019
[2025] HKCFI 1126
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2421 of 2019
BETWEEN
Md Bappy Ahammed alias Ahmed Mohammad Bappy
Applicant
and
Torture Claims Appeal Board /
Putative
and
Director of Immigration
Putative
Interested Party
Application for Leave to Apply for Judicial Review
Following:
Order by Deputy High Court Judge Levy :
1. Leave to withdraw the Leave Application;
2. The Leave Application be dismissed.
Observation for the Applicant:
Introduction
1. By prescribed Form 86 filed on 23 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 20 September 2019 (“Board’s Decision ”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director ”) dated 17 May 2018 (“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 12 March 2025. He was absent from the hearing. A telephone call was then made to the applicant’s given number. He stated on the phone that he did not understand that he was required to attend court. This court therefore adjourned the hearing to next day. At the adjourned hearing, 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 surrendered himself to the Immigration Department on 21 October 2014, after apparently entering Hong Kong by boat without permission on 19 October 2014. The applicant raised his non-refoulement claim on 4 February 2015. The applicant’s claim was considered under all applicable grounds i.e. torture risk[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 Awami League (“AL ”) supporters who beat and kidnapped him for ransom in his home village. The applicant supported the rival party, Bangladesh Nationalist Party (“BNP ”).
5. The applicant claimed that in around 2012, eight supporters of the AL came to his house and kidnapped him, and demanded ransom from his parents. After the parents agreed to pay a lesser sum of the ransom, the applicant was released. Several days after the kidnap, the applicant met the AL supporters who threatened him to join the AL, otherwise he would be killed. The applicant was very frightened and decided to run away from the AL supporter by going to Dhaka. After working there for several months, the applicant went to Volail where he met a friend who advised him to go to Hong Kong to seek protection.
6. 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’s injuries did not attain the minimum level of severity, and in the two years between the time of the kidnapping and his date of departure from Bangladesh, the applicant had not suffered any further harm, particularly after he moved to Dhaka. Any risk of harm was localized in any event. 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.
7. On 16 May 2019, the applicant attended a hearing before the Board, during which the applicant answered questions from the Board.
8. The Board found that there was no real risk of harm. The Board found that the applicant’s claim was not credible, due to material inconsistencies between his evidence given before the Director and his oral evidence before the Board, in particular as regards to the year of the kidnapping and the amount of the ransom paid by his parents. At the hearing, the Board put these inconsistencies to the applicant. however he was unable to offer any explanation for the inconsistencies. The Board thus rejected the claim. Having found that there is no real risk of harm, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.
Legal principles applicable to judicial review
9. 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
10. The applicant’s Form 86 and supporting affirmation did not contain any grounds for seeking relief.
11. 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 it is now safe for him to return as the leader of AL has left the country. He wished to withdraw the Leave Application, which withdrawal application will be discussed below.
12. It is plain that 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.
13. The Board’s Decision was arrived at after having carefully examined the applicant’s evidence. It found that the applicant’s claim was not credible due to material inconsistencies for which the applicant was unable to explain, thus there was no real risk of harm. These are findings of fact, which the court in a judicial review will not interfere with.
14. 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.
15. 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.
Withdrawal of Leave Application
16. In view of the applicant’s indication of his wish to withdraw the Leave Application, the applicant was therefore asked to confirm his withdrawal application under oath. The applicant affirmed that the reason for his application to withdraw is because it is now safe for him to return home. He confirmed that he made the application voluntarily and understood that upon the court’s granting of leave to withdraw, the Board’s Decision stands.
17. The applicant further showed this court a photographic image of his signed letter in English dated 16 May 2024 to the Director. The applicant said that the letter was prepared by his friend. In the letter, the applicant stated that he wanted to go home as soon as possible as it was now safe to go home. He stated that he wanted to cancel all the non-refoulement claims including the appeal.
18. Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action. For the reasons stated above, I accept that the applicant made the withdrawal application voluntarily and understands the consequence of the withdrawal. In the circumstances, I should grant leave to the applicant to withdraw the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471 .
Orders
19. Leave to withdraw the Leave Application;
20. The Leave Application be dismissed.
Dated the 8th day of April 2025
(Alfred Chan)
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 :
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);
Sent to the ApplicantMd Bappy Ahammed alias Ahmed Mohammad Bappy
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 8/4/2025Torture Claims Appeal Board/Non-refoulement Claims Petition Office Director of Immigration Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)
Form CALL-1
[1] This refers to the risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap.115.
[2] 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 ”).
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art. 3 of HKBOR.
[4] 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.
[5] 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.