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HCAL 2996/2019
[2025] HKCFI 1718
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2996 of 2019
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BETWEEN
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Ali Mohammad Ripon |
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 3 October 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 18 April 2019 (the “Notice”), refusing his non-refoulement application.
Background
2. The Applicant was a Bangladeshi national. He entered Hong Kong illegally on 30 July 2018 and surrendered to the Immigration Department on the following day. He then made an application for non-refoulement protection on 23 November 2018. 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 against the Notice was dismissed by the Board’s Decision. He now seeks leave to review 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 her lawyer. In gist, he claims, if returned to Bangladesh, he will be harmed or killed by members of the Awami League (“AL”) because of his association with the rival political party, namely Bangladesh Nationalist Party (“BNP”).
4. The Applicant, now aged 42, was born and raised in Kumarkhali, Kushtia, Bangladesh. He is married and has three children who are residing in Bangladesh. He has a brother in Hong Kong (“Liton”) and two other siblings in Bangladesh (“Shamim” and “Momin”). He attained a high school qualification in 1999 and worked in the garment retail business. He and his family are supporters of the BNP.
5. He claimed he held the position of Party Campaign Editor of Union Gobra Chandpur, while Liton was the Secretary of Union Gobra Chandpur. From a year unrecalled to 2008, he and Liton encountered numerous group fights with AL men. Both sides fought with wooden sticks and hockey bats. Since 2008, the AL men disturbed his father’s shop. After he opened his shop in 2010, they disturbed it also. Sometimes he paid them 5,000 to 10,000 taka to avoid trouble. He had reported the incidents to the police, but the police took no action.
6. In 2015, Liton was severely injured at his waist in a fight with AL men. It took him a month to recover. He was threatened to join the AL or leave Bangladesh. Liton was worried and left for Hong Kong.
7. Afterwards in the same year, the Applicant was assaulted by Abdul Rauf (who was an AL member and member of the parliament) and his two bodyguards. Though his bodyguards were armed, they only beat him with bare hands. He reported the incident to the Panti police camp and paid a bribe of 5,000 taka, thinking he would receive protection in return. But a few days later, his home was raided by 10 to 15 AL men, including Abdul Rauf and his two bodyguards. The Applicant and his two brothers, Momin and Shamim, were dragged out of their home and beaten with hockey bats and wooden sticks. His wife ran off to Panti police camp to seek help but the police refused to assist. The attack stopped after the Applicant’s parents promised the AL men that they would leave their home village.
8. The Applicant’s left arm was fractured, his left ankle was lacerated and there were multiple cuts on his face and bruises all over his body. He was hospitalised for three to four days. Then he went to hide himself in Dhaka as he heard the police had charged him, Momin and their uncle for murder of an AL supporter. He hid in Dhaka for one and half years living on support from his father.
9. Momin’s right hand was almost chopped off. He was sent to India for treatment. Then he returned to Bangladesh and hid in their maternal aunt’s home in Kaliganj. Shamim suffered minor injuries only and hid in his uncle-in-law’s home in Dinajpur.
10. Later, the Applicant heard that Momin was arrested in Kaliganj. He understood that the AL had control of the police and he would not be safe in Bangladesh. Thus, he fled to Mainland China. From there, he sneaked into Hong Kong. Subsequently, he heard that Momin was released after paying a bribe. The warrant of arrest is against him and Liton. Hence, he felt it unsafe to return to Bangladesh as it would not take long for the AL men to locate him regardless where he hides.
The finding of the Board
11. The Applicant testified before the Board. The central detail of the Applicant’s claim is his association with the BNP. He told the Board that he joined the BNP in 1999 and was promoted to the position of General Secretary of Bobra Chandpur Union in most probably 2008, while Liton was a party worker and his other two brothers were just supporters. In stark contrast to his NCF, he said he held the position of Party Campaign Editor and Liton was the Secretary. The Applicant produced a copy of his membership document which shows his designation was General Secretary but the photograph on the document is unclear. The Board found it implausible that if the Applicant was a member of the BNP and was appointed to a leadership position, he would not provide consistent evidence in respect of his title or that of his brother.
12. The Applicant also produced a certificate purportedly signed by the chairman of Kushtia certifying his membership in the BNP, but it made no mention of his position whether as General Secretary or Party Campaign Editor. He said that the document was obtained by his brother from the chairman who knew him and his brother personally. But the name of the chairman he gave is different from the name of the person who issued the certificate. Given the inconsistencies among his evidence, the membership document and the certificate, and the independent country of origin information about the availability and widespread use of forged documents in Bangladesh, the Board gave little weight to the membership documents and the certificate.
13. Though he was able to demonstrate some knowledge of the BNP, it is not consistent with his alleged long association with the party, his position and his claimed activities in support of the party. He was unable to say when the BNP was in power in Bangladesh or discuss what the party’s ideology or objective was and unable to explain his actions in supporting the BNP or his role and responsibilities as General Secretary in other than vague and limited terms.
14. In view of the deficiencies of the Applicant’s evidence relating to his title and association with the BNP, his knowledge of the BNP, its ideology or objective, the Board did not accept he was a member or office bearer in the BNP. The Board accepted he was a supporter the BNP, but not an active one.
15. The Board noted significant inconsistencies between his claim as set out in his NCF and his testimony. At the hearing, when asked when he first started experiencing problems from the AL members, the Applicant said that it first started from 2005 when the AL men tried not only to make him but all BNP members to join them. But, in his NCF, he made no mention of the AL men harassing him to make him join them. Instead, he said that from a year unrecalled to 2008, he and his brother were involved in numerous group fights with AL men. If his first problem with the AL men was their pressurising him to change his political allegiance to AL, the Board was concerned why he would not have mentioned this in his NCF. Likewise, the Board found his assertion that the AL men wanted not only him but all BNP members to join the AL fanciful.
16. When asked at the hearing if anything else happened apart from the visits to his father’s shop since 2010, the Applicant mentioned about assault by 10 to 12 AL men when he did not pay protection money in 2014 or 2015. The AL men beat him with wooden sticks, hockey sticks and knives causing injury to his heel, Achilles tendon, his back and face resulting in an open injury to his face which required three stitches. Despite he said that was the biggest attack, it was not mentioned in his NCF which mentioned a minor attack with bare hands by Abdul Rauf and his two bodyguards. When confronted, he explained that was because he was not asked. The Board found the answer unconvincing and had doubts that either incidents occurred.
17. Similarly, he said after that biggest attack in 2014 or 2015, 10 to 12 AL men attacked his father with hockey sticks, splitting the skin on his father’s skull. This attack was also not mentioned in his NCF. The Applicant’s explanation was that he did not recall it at that time.
18. In view of the above and numerous other significant differences in his evidence as to what are purportedly his personal live experience, the Board was of the opinion that he concocted his claims regarding the problems he allegedly had with the AL due to his and his family’s association with the BNP. As for the warrant for the Applicant’s arrest, the Board could find nothing in the warrant to suggest that he had been accused of murder. Instead, there was a reference to the Women and Children Repression Prevention Act. The Board also noted from independent country of origin information about the relative ease with which false documents could be obtained in Bangladesh. As such, it gave no weight to the warrant of arrest. In addition, the fact that the Applicant was issued his passport on 17 August 2017 and left Bangladesh through immigration checkpoint without problem confirmed the Board’s doubt about the alleged murder charge. The Board found the Applicant is not a witness of truth and his claims regarding his association with the BNP and the problems he and his family had with the AL are not credible. It did not accept there was any false case of murder filed against him and his family members. Even taking into consideration his accepted profile as a supporter of the BNP who did not engage in any activities in support of the party, the Board did not accept he would be of any interest to any AL members or supporters on his return to Bangladesh because of his past support of BNP. It thus came to the conclusion that the Applicant had failed to prove the fundamental basis of his claim that he would face any form of harm upon his return to his home country. It therefore dismissed his appeal.
Legal principles applicable to judicial review
19. 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
20. The Applicant did not put forward any grounds of application for judicial review in his Form 86. In his supporting affirmation, he repeated what he had told the Board is true. After the legal principles in the precedent section had been explained to him, he 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. However, he submitted that the situation in Bangladesh is even worst now than before. This could not be an arguable ground for review. 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 unreasonableness or irrationality in the Decision.
Overall scrutiny
21. 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 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 did not accept he had proved the fundamental basis of his claim and that he would face any form of harm upon his return to his home country. 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 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
22. For the above reasons, the Applicant’s leave application is refused.
Dated the 28th 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 28/04/2025
Ali Mohammad Ripon
Applicant’s ref. no: |
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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 28/04/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 15857/19/4/115/B2019
Director of Immigration
Putative Interested Party’s ref. no.:
QA TC 141/19 (Formerly RBCZ 10065/19)
Department of Justice,
Senior Assistant Law Office
(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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