HAFIJUR RAHMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2192/2020

[2025] HKCFI 5495

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2192 of 2020

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

Following:

1.   The applicant was granted leave to amend Form 86 by adding the Board’s Earlier Decision dated 20 January 2017 to the column for “Judgement, order, decision or other proceedings in decision in respect of which relief is sought”.

2.   There shall be no extension of time for the applicant to file the application for leave to apply for judicial review out of time in respect of the Board’s Earlier Decision dated 20 January 2017.

3.   The application for leave to apply for judicial review for the Board’s Decisions dated 20 January 2017 and 28 August 2020 be dismissed.

Observations for the Applicant:

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 2 November 2020, 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 28 August 2020 (“Board’s Decision”) dismissing the applicant's appeal against the decisions of the Director of Immigration (“Director”) respectively dated 11 July 2017 (“Director’s Decision”).

2.  The applicant's non-refoulement claim on all applicable grounds i.e. risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM[5] were considered in two separate decisions of the Director.  The Director’s Decision was primarily concerned with BOR 2 risk ground.  The other 3 grounds of risk of torture, BOR 3 risk and persecution risk were previously dismissed by the Director in his decision dated 23 July 2015 (“Director’s Earlier Decision”).  By its decision dated 20 January 2017 (“Board’s Earlier Decision”), the Board dismissed the applicant’s appeal against the Director’s Earlier Decision.  The Board’s Earlier Decision and Board’s Decision can be viewed at the following 2 hyperlinks: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002192_2020_files/Earlier_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002192_2020_files/the_Board's_Decision.pdf

3.  The basis of the applicant’s claim was that, if refouled to Bangladesh, he would be harmed or killed by Mashuk (a party member of the Bangladesh National Party) and his associates for having refused to pay extortion money to them.  The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 9 September 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.

Discussion

5.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[6]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[7], and further to make full and frank disclosure of all material facts to be verified by an affidavit.   

7.  Save and except one specific ground stated in the applicant’s supporting affirmation alleging that the Board had substantially relied on the source of news which was not officially recognized or hearsay and outdated resulting in the Board making groundless speculation in concluding that it was safe for the applicant to return home, the applicant’s Form 86 and supporting affirmation contained no such grounds.

8.  At the hearing, this court asked the applicant to clarify whether he had also intended to challenge the Board’s Earlier Decision.  Notwithstanding the applicant’s confusing responses, this court, for the sake of procedural economy and expediency, decided to allow his application to amend the Form 86 by including the Board’s Earlier Decision in the Leave Application.  In submission, the applicant only stated that he still had problems at home and wished to stay in Hong Kong longer.  He stated that the situation in Bangladesh had deteriorated due to the change of government.  

9.  As the Courts have repeatedly stated, 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.[8]  In the present case, the Board in the Board’s Earlier Decision found that the applicant’s accounts as to the incidents involving demands for money were doubtful, and the evidence was contradictory.  Importantly, the Board found that the applicant was issued visas for his departure for China before the applicant was allegedly assaulted. As the applicant was unable to provide any explanation for this, the Board found that the applicant’s intention to leave Bangladesh was formed well before the allegedly assault incident on 22 July 2007.  The Board therefore concluded that the applicant’s decision to leave Bangladesh was unconnected with any fear of death of serious harm at the hands of Mashuk or his associates. This, plus the applicant’s delay in raising the non-refoulement claim  was found to be inconsistent with his claimed fear.  The Board therefore found that the applicant failed to show that there were substantial grounds for believing that he would be subjected to any harm as alleged.  The Board also found that internal relocation was reasonably viable.  The Board therefore dismissed the applicant’s appeal against the Director’s Earlier Decision.

10.  The Board’s Decision was concerned with the BOR 2 risk ground.  Apart from providing a letter from the applicant’s father stating that it was the demand for the protection money which resulted in the applicant deciding to leave Bangladesh, the applicant did not produce any additional evidence.  Since the Board had already rejected the centrepiece of the applicant’s accounts in the Board’s Earlier Decision, the same constituted Board found on paper without holding a hearing that the applicant would not face a genuine BOR 2 risk.

11.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

12.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness in the Board’s Earlier Decision and the Board’s Decision.  I am satisfied that the Board was entitled to reach the conclusion that the applicant had not and would unlikely face risk of harm after having rejected the applicant’s centerpiece of his account.  The applicant has not advanced any grounds, whether written or oral, in support of the Leave Application.  The only written ground contained in the applicant’s supporting affirmation was vague and did not condescend to particulars.  The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[9].

Whether to extend time for the late application in respect of the Board’s Earlier Decision

13.  Another matter I need to consider is the delay.  Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date when grounds for the application first arose.  The applicant was late for about 3 years and 6 months even if the GAP[10] period for the period of January to May 2020 is to be taken into account, which delay is serious and substantial.

14.  The applicant was unable to provide any coherent explanation for the delay when the court asked him to give his reason at the hearing.  He alluded to his lack of education and difficulty in finding help.  In the circumstances, I do not find the applicant provided good reason for the lengthy delay.  This coupled with the lack of good prospect of success in his intended challenge, I refuse to exercise my discretion to allow an extension of time for the applicant to file the Board’s Earlier Decision in the Leave Application.

Orders

15.  The applicant was granted leave to amend Form 86 by adding the Board’s Earlier Decision dated 20 January 2017 to the column for “Judgement, order, decision or other proceedings in decision in respect of which relief is sought”.

16.  There shall be no extension of time for the applicant to file the application for leave to apply for judicial review out of time in respect of the Board’s Earlier Decision dated 20 January 2017.

17.  The application for leave to apply for judicial review for the Board’s Decisions dated 20 January 2017 and 28 August 2020 be dismissed.

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