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

HCAL 2660/2019

[2025] HKCFI 2542

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2660 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 11 September 2019 for leave to apply for judicial review (the “leave application”) of a decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 6 September 2019 (the “Board’s Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 14 December 2017 (the “Notice”), refusing his non-refoulement application.

Background

2.  The Applicant is a Bangladeshi national. He entered Hong Kong illegally from Shenzhen on 30 April 2014. He was arrested by the police for illegal remaining in Hong Kong on 12 May 2014. He made a non-refoulement claim on 14 May 2014. In due course, his 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 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 prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims that if returned to Bangladesh, he will be harmed or killed by members of the Awami League (“AL”) because he refused to quit the Bangladesh National Party (“BNP”) and to join the AL.

4.  The Applicant, now aged 56, was born in Hajir Hati North Laxmipur, Krishnonagar, Nabinagar, Brahmanbaria, Bangladesh. He is married with four children. His wife, children, widowed mother and four siblings are living in Bangladesh. He received formal education for five years. He owned and worked in a grocery store in his home village from 2000 to 2013.

5.  He became a BNP member in around 2003. He had no conflict with or had ever been harassed by AL members until late 2013. One afternoon in late 2013 to early 2014, he received a call from a man named Bachchu, who is an AL member. During the call, Bachchu told him to quit the BNP and join the AL. Bachchu also threatened to kill him if he refused. He was frightened and immediately hanged up the phone. He did not report the incident to the authorities or the police because he did not believe they could provide any assistance or protection to him.

6.  About a week later, while he was on his way to his sister’s home, he was intercepted by four to five AL people whom he recognised were Bachchu’s subordinates. They asked him to join the AL. He refused. Then they started punching and slapping him with bare hands, and he eventually fell on the ground. He stood up later and walked back to his home. He did not receive any medical treatment because the injury was not serious. On his sister’s advice, he went to stay in Dhaka for a few days and then flew to Guangzhou on 25 April 2014. Then, he sneaked into Hong Kong on 30 April 2014.

7.  He does not believe that the Bangladeshi authorities and police could protect him because they are corrupt and useless. He does not believe internal relocation would be viable, as Bachchu and his AL members could locate him through their powerful network throughout the whole country.

The finding of the Board

8.  The Applicant did not appear at the hearing of his appeal before the Board on 9 May 2019. In response to the Board’s letter requesting for explanation for his absence, he replied that he only received the notice of hearing on 26 May 2019. The Board seemingly did not accept his explanation as the notice of hearing had been sent to him by post on 25 March 2019, more than two months earlier. As the notice of hearing had been served in accordance with section 37ZV of the Immigration Ordinance, it was conclusively presumed that the Applicant had been served with the notice of hearing on 27 May 2019. Adopting the three stage approach in an application for extension of time in The Secretary of State for the Home Department v Begum[5] (ie considering the seriousness of the failure to comply with the rules, considering the reason for the failure, and evaluating all the circumstances of the case for the just disposal of the application) and the principles that litigation must be conducted efficiently and at proportionate cost and that compliance with rules and practice directions must be enforced, the Board considered it appropriate to proceed to determine the appeal on the evidence before it in the Applicant’s absence.

9.  The Board assessed the Applicant’s claim on the basis of the factual evidence before it. It noted that his alleged persecutors are not government officials but political rivals from the AL and that he gave no explanation why his persecutors were interested in a low-level member of the BNP like him. It was concerned how his persecutors came to know about his telephone number, why he did not make a complaint to the police about his treatment by the AL members and why he did not continue to stay in Dhaka where nothing eventful happened to him, but chose to flee Bangladesh for Hong Kong. On balance, it rejected his explanation that the police would not offer him protection as merely fanciful, as he did not even test his assumption. On the basis of the country of origin information (“COI”), the Board found citizens have the right to make complaints to the police and the police generally take them seriously.

10.  In view of these questions and concerns, the Board had doubts about the Applicant’s true intentions in coming to Hong Kong, which is heightened by his failure to seek asylum only until his arrest two weeks after his arrival in Hong Kong. For all these reasons, the Board found the Applicant’s claim not credible. Applying the law applicable to non‑refoulement protection, it reached the conclusion that the Applicant is not entitled to protection under any of the four applicable grounds under the USM. Hence, it dismissed his appeal against the decision of the Director in his Notice.

Legal principles applicable to judicial review

11.  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[6].

Grounds for judicial review

12.  The Applicant did not advance any grounds of review in his Form 86 nor in his supporting affirmation. He merely annexed a copy of the Board’s Decision to his affirmation to support his claim. At the hearing, after the legal principles in the preceding section had been explained to him, he indicated that he understood the explanation and had no complaint about errors of law, procedural unfairness and irrationality. 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

13.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that in view of the lack of a reasonable explanation for his absence at the hearing, the Board had rightly decided to exercised its discretion in making a determination in the Applicant’s absence. It 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. It analysed the evidence carefully, tested it against common sense, inherent probability and the COI. 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

14.  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

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