MOZAMMAL M v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 182/2020

[2025] HKCFI 2029

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 182 of 2020

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court

(1)   Form 86 be amended, naming only the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office as the Putative Respondent.

(2)   The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 (“Form 86”) dated 17 January 2020, the Applicant applies 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 10 January 2020 (“the Board’s Decision”) affirming the decision of the Director of Immigration (“the Director”) dated 3 September 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds (“the Grounds”) under the Unified Screening Mechanism (USM).

Background

2.  The Applicant’s personal background, the incidents alleged to show that he would be killed by his political opponents and would face persecution in Bangladesh because he had converted from Muslim to Christian, and the immigration and procedural history, etc. were set out in the Board’s Decision.  It is not necessary for me to restate them here.  For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1].  The Board’s abbreviations and descriptions are adopted below unless otherwise indicated.

Discussion

3.  In Form 86, the Applicant alleges that the Board’s Decision was “unreasonable” because it did not consider his claim properly and was based on “assumption”. He also reiterates that his political opponents have been searching for him, and according to his mother, they would kill him if he returns.

4.  I am not satisfied that the intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success at all (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).

5.  I have considered the decision of the Board with vigorous examination and anxious scrutiny, applying an enhanced standard in view of the seriousness of the issues involved (see Nupur Mst v Director of Immigration[2018] HKCA 524 at §14).

6.  It can be seen, from the Board’s Decision, that after considering the totality of evidence:

(1)  The Board did not accept that the Applicant had proved with acceptable evidence that there was substantial ground for believing that there was danger for him to be subjected to torture for political or religious reasons upon his return to Bangladesh and had therefore dismissed the claim under the Ordinance and CAT (see §§48-60 of the Board’s Decision).

(2)  The Board did not accept that the Applicant’s alleged injuries had attained the minimum level of severity in relation to torture or any ill-treatments under BOR 3, nor had the mental suffering if any, caused by the verbal threat uttered by the villagers attained the required level if they happened at all.  In the Board’s view, it was also difficult for the Applicant to satisfy that he would face “a genuine and substantial risk”, as his account of events was not to be believed (see §§63-65 of the Board’s Decision).

(3)  The Board found that the Applicant’s alleged belief that the AL would kill him upon his return to Bangladesh was made on no basis.  His evidence was incapable of substantiating, even to a low standard, that there was a foreseeable real personal and present risk of him facing a BOR 2 (1) situation.  His case also did not fall within BOR 2 (2)-(6) situation.  It The Board made clear that even if it were accepted that there were verbal threats from his neighbours, there was no evidence to show that they were going to kill him for that.  In any event, there was sufficient protection provided by the Bangladeshi government to the citizens and the Appellant’s claim under this head was therefore dismissed (see §§66‑69 of the Board’s Decision).

(4)  The alleged possible persecution was on account of political opinion and religion.  The Applicant had failed to prove that his fear was “well‑founded”.  The alleged feared risk was not supported by COI.  As state protection was available, he further failed to prove he “is unable, or owing to such fear, is unwilling to avail himself of the protection of that country” on account of both “political opinion” and “religion” (see §§70‑74 of the Board’s Decision).

(5)  The Board agreed that Chittagong and Dhaka were viable internal relocation options for the Applicant taking into account the size and dense population of the country and his background (see §§75-76 of the Board’s Decision).

7.  I am unable to accept, as alleged by the Applicant, that the Board’s Decision failed to consider his claim and was based on “assumption”, and therefore it was “unreasonable”.  On the contrary, I am satisfied that the Board had assessed the Applicant’s claim wholly on the basis of his case.  It had also correctly set out the law and key legal principles relating to the Grounds under the USM, the burden of proof and standard of proof, and identified the issues and observed a very high standard of fairness.

8.  I observe that the Applicant has attempted to reargue his case, alleging that his political opponents have been pursuing him and may even kill him.  It is well‑established that the assessment of evidence, COI materials, risk of harm, state protection and viability of internal relocation was primarily within the province of the Board.  The Court’s role in a judicial review is not to provide a further avenue of appeal.  Unless there are sufficient public law grounds such as error of law, procedural unfairness or irrationality, which the Applicant has completely failed to demonstrate, the Court should not usurp the role of the Board (see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163).

9.  In the premises, the Applicant’s intended challenge of the Board’s Decision is plainly not reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676) and no leave should be granted.

Conclusion

10.  I accordingly make an order that the Leave Application herein 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