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HCAL 248/2020
[2025] HKCFI 3202
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 248 of 2020
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Hossan Mohammad Raju |
Applicant |
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and
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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Putative 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:
1. Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.
2. The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.
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 23 January 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 10 January 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 5 December 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000248_2020_files/the_Board's_Decision.pdf
2. The basis of the applicant’s claim was that he would be harmed or killed by the members of the Awami League. 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.
3. At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 19 June 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.
The applicant’s grounds
4. The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.
5. In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.
6. In his Form 86 and supporting affirmation, the applicant did not raise any grounds for judicial review.
7. At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application. Notwithstanding the court’s reminding him that he had not provided any grounds in his papers, the applicant still stated that he had nothing to say and was only not happy with the Board’s Decision.
The Board’s reasons
8. 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.[3] In the present case, in the assessment of the applicant’s credibility, the Board found that the applicant’s intention to seek non-refoulement protection was suspicious, and rejected the applicant’s claims of past assaults or asserted fear. It further found that as the applicant was only an ordinary JL member[4] that the problem he faced was only purely a personal dispute with local AL members. There was also reasonable state protection available to him. It also found that the applicant’s injuries from the attacks by AL members did not meet the minimum level of severity. The Board concluded that there was no real risk of harm. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.
9. 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, I am satisfied that it seems reasonably arguable that the Board’s Decision is erroneous in law, tainted by procedural unfairness, unreasonable and does not meet the required high standards of fairness in respect of the matters set out below.
Credibility assessment based on conviction in absentia and arrest warrant
10. At [44] – [49] of the Board’s Decision, the Board discussed the applicant’s conviction in absentia by the Bangladeshi Criminal Court for possession of illegal arms, and for which that court sentenced him in absentia on 15 May 2017 to 10 years’ imprisonment. The Board also discussed the arrest warrant issued against the applicant on 26 September 2014 and his subsequent departure from Bangladesh on 3 January 2015.
11. While the Board did not challenge the existence of the conviction in absentia and the sentence of imprisonment, the Board did not accept that the applicant was subject to the arrest warrant because he was able to depart from Bangladesh by air using his own passport. The Board also took a dim view of the applicant’s statement that he fled to Hong Kong to avoid the false charges against him (brought by AL members) and the prison sentence. These doubts led the Board to conclude at [49] of the Board’s Decision that the applicant’s intention to seek protection in Hong Kong was suspicious.
12. The Court of Appeal held in Re Masud Md [2021] HKCA 1449 (G Lam JA and Coleman J) at [31] – [36] that as a matter of procedural fairness, the rule in Browne v Dunn (1894) 6 R 67 (HL) (28 Nov 1893) applies to Board proceedings[5]. Before rejecting a non-refoulement claimant’s evidence as untrue, the Board should unequivocally raise its concerns with the claimant and give them a fair opportunity to respond, explain or otherwise deal with such concerns.
13. The Court of Appeal further held in Re Masud Md at [39] and [43] – [44] that where the Board has not directly explored or put directly to the applicant at the hearing all matters of concern that were crucial or determinative, the Board has not complied with the rule in Browne v Dunn.
14. In the present case, the Board asked the applicant some questions regarding the criminal proceedings in Bangladesh. However, the Board did not question or draw the applicant’s attention to any concerns it might have had about the rest of his factual account, or give him an opportunity to explain or respond. Thus the Board has not complied with the rule in Browne v Dunn, and was not entitled to reject most of the applicant’s factual account. The Board’s Decision is tainted by procedural unfairness and/or does not meet the required high standards of fairness.
15. Moreover, the Board appears to have erroneously applied its subjective common sense when assessing the alleged arrest warrant when stating at [44] of the Board’s Decision that “the police has reasonable ground to follow up the case”. Hence, arguably, the Board’s assessment of credibility and its rejection of the evidence concerning the arrest warrant seems to be unreasonable. Further, its conclusion that the applicant’s purpose of coming to Hong Kong to avoid imprisonment on false charges and the imprisonment also seems have been based on its subjective common sense. The applying of a decision-maker’s own common sense in non-refoulement claims has been disapproved in ST v Betty Kwan[6] (which was later followed in TI v Winston Leung[7] at [61]). For this reason, it is reasonably arguable that the Board’s Decision is unreasonable.
Risk of harm
16. In its assessment of persecution risk[8] at [51] of the Board’s Decision, the Board characterized the applicant’s troubles in Bangladesh as being purely in the nature of personal dispute(s):
“The problem the Appellant faced is purely personal dispute with other AL members in his locality. He is an ordinary member and is not the person who expresses the political opinion against the other political parties.” [sic]
17. However, in making the said conclusion, the Board failed to consider the applicant’s evidence that in both the AL attacks on 20 June and 14 September 2014, he did not know any of the attackers, and that the attackers on 14 September 2014 were not local people[9]. Moreover, attacks took place at a JI political demonstration and a JI party office respectively. Arguably, the Board failed to consider all materials placed before the Board, including relevant evidence and risk factors, and thus fell into reviewable error: Ina Astuti v Torture Claim Appeal Board, [2022] HKCA 448 at [33] & [43] – [44].
18. Further, when concluding that the applicant’s injuries did not meet the minimum level of severity, the Board appears to have failed to consider the relevant evidence that the AL attackers threw grenades at the applicant and other JI members and supporters at the JI party office, or the evidence that one of the applicant’s friend’s was chopped by the AL attackers and died of his injuries[10].
19. Most importantly, in the Board’s assessment of risk of harm, the Board completely failed to mention or consider the future risk of harm that might have arisen from the applicant’s conviction in absentia and sentence of imprisonment on a false charge instigated by AL members for possession of illegal arms. The failure to consider the evidence that was relevant to the assessment of persecution risk, BOR 3 risk and torture risk[11] arguably renders the Board’s Decision unreasonable and is procedural unfair.
State protection and internal relocation
20. At [53] – [54] of the Board’s Decision, the Board referred obliquely to the Director’s COI regarding the Bangladeshi government’s steps taken to reform the police and provide channels to seek justice in Bangladesh[12]. Based on the Director’s COI, the Board concluded that reasonable state protection was available. The Board did not cite or refer to any other COI.
21. In A, B, C, D and E v Torture Claims Appeal Board [2024] HKCA 471 at [33] – [34], the Court of Appeal held that the Board has a duty to demonstrate that it has properly and independently assessed COI, and that where the Board fails to comply with such duty, the Board’s decision is tainted with procedural unfairness.
22. In the present case, the Board failed to mention or consider any COI other than the Director’s COI. Thus, the Board has not complied with its duty to demonstrate that it properly and independently assessed COI, and the Board’s Decision is arguably tainted with procedural unfairness.
23. More importantly, the Board failed to mention or consider any COI as to the extent of judicial independence and impartiality in Bangladesh, including the extent to which whether there were fair trials and appeals in that country. In light of the applicant’s conviction in absentia and sentence of 10 years’ imprisonment, the Board’s failure to consider such COI has arguably failed to comply with the high standards of fairness stated A, B, C, D and E v Torture Claims Appeal Board (supra.) Thus, the Board’s finding as to state protection is arguably unreasonable and tainted by procedural unfairness.
24. For the above reasons, it seems at least reasonably arguable that the Board’s Decision is wrong at law, tainted by procedural unfairness and that it does not meet the required high standards of fairness.
Conclusion
25. In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.
26. Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s decision, and direct that he shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.
Orders
27. Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.
28. The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.
Dated the 4th day of August 2025
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(Alfred Chan)
for Registrar, High Court |
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 4/8/2025
Hossan Mohammad Raju
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 4/8/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 14456/18/11/299/B1696
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 4265/18 (formerly RBCZ 13482/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Re Zunartyah [2018] HKCA 14 at [23].
[2] Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016 at [142].
[3] 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.
[4] The Board’s Decision [51]. Presumably the Board was referring to the Jamaat-e-Islami, but this is not entirely clear.
[5] Subsequently followed and applied in Re Pham Van Pha, [2022] HKCA 120 (Kwan VP and Lisa Wong J) at [22] – [27]; appeal allowed in that case
[6] [2014] 4 HKLRD 277 (CA) at [43].
[7] HCAL 66/2015, unreported, 3 October 2016.
[8] 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.
[9] [12] & [14] – [15] of the Board’s Decision
[10] [15] – [16] of the Board’s Decision
[11] This refers to the risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap.115.
[12] See [18(iv)] – [18(ix)] of the Director’s Decision, corresponding to pp 11 to 13 of the Board hearing bundle
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