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HCAL 2817/2019
[2025] HKCFI 1125
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2817 of 2019
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BETWEEN
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Salam Sheikh Abdus |
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 Levy:
The Leave Application be dismissed.
Observation for the Applicant:
Introduction
1. By prescribed Form 86 filed on 25 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 13 September 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 12 April 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. 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 was arrested by police in Hong Kong on 22 August 2015 on suspicion of being an illegal immigrant, and was referred to the Immigration Department for investigation on 25 August 2015. He claimed to have entered Hong Kong by sea without permission on 21 August 2015. The applicant raised his non-refoulement claim on 28 August 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 the Awami League (“AL”) supporters due to his support for the rival Bangladesh Nationalist Party (“BNP”).
5. The applicant stated that he had been a member of BNP for 20 years, and held the position of general secretary in his area at Alamdanga. Before leaving the country, the applicant claimed that he encountered two attacks. The first attack took place in about the end of 2014. It happened during a rally he and his party members held in his area. Members of the AL together with the police suddenly came along and assaulted the applicant and his members with sticks and long choppers. The applicant and about 15 to 20 of the party members were injured. The applicant sustained injury on his face and teeth and was hospitalized for about one week. The police refused to accept the complaint the applicant later filed.
6. The second attack took place around 4-5 days after the applicant was discharged from the hospital. In that incident, about 15 to 20 AL members came to the applicant’s house when his parents, wife and daughter were also at home. The attackers vandalized the house and even set fire to it. They threated the applicant that if he did not quit BNP and join AL, he would be killed. The applicant and his family did not sustain serious injury in this attack.
7. Several days after the second attack, the applicant left his home town and fled to Khulna. After 3 months, the applicant further moved to Dhaka from where he eventually fled to China to avoid further attack from the AL members.
8. 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. The Director also believed that the applicant had not suffered any further harm after he moved to Dhaka and that any risk of harm would have been localized. 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.
9. On 8 March 2019, the applicant attended a hearing before the Board, during which the applicant provided further details as to his claim and answered questions from the Board.
10. The Board found that there was no real risk of harm. The Board was prepared to accept that the applicant might have been a BNP supporter or sympathizer. Overall, the Board noted that the applicant only had some general knowledge about the BNP, but was vague and general on details. The Board found that the applicant’s evidence was not plausible in light of his claim that he had been a BNP general secretary for his local area. The vagueness of his narrative regarding past attacks by Awami League supporters also undermined the plausibility of his claim. In its findings, the Board concluded that the applicant was not and had not been a leader or activist of BNP as claimed. The Board further concluded that the two attacks the applicant narrated lacked credibility. The Board also found that any risk is of a localized nature, and internal relocation would be viable. 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
11. 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
12. The applicant’s Form 86 and supporting affirmation did not contain any grounds for seeking relief.
13. 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 submitted that there was still no security in his home country and it was not safe for him to go back even though he is now no longer involved with the BNP or any political party. However, when asked to specify the mistake or error of the Board’s Decision, the applicant said there was none.
14. 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.
15. The Board’s Decision was arrived at after having carefully examined the applicant’s evidence. It found that the applicant had exaggerated the extent of his political involvement and that much of his claim was not plausible. Thus, there was no real risk of harm. The Board also concluded that internal relocation would be viable. These are findings of fact, which the court in a judicial review will not interfere with.
16. 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.
17. 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.
18. After the hearing on 12 March 2025, the applicant filed an affirmation on 3 April 2025 stating that he wanted to go back to his country, and applied to withdraw the Leave Application.
19. Notwithstanding the absence of reasons given for the withdrawal, I am satisfied that the applicant's application is valid as there is an interpretation clause attached to the affirmation. Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action. 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
Order
20. The Leave Application be dismissed
Dated the 8th day of April 2025
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(Alfred Chan)
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 8/4/2025
Salam Sheikh Abdus
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 8/4/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11318/18/4/328/B1219
Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ/13079/15
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.
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