MD SHAFIQUL ISLAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2635/2019

[2025] HKCFI 2573

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2635 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;

1.  Leave to amend the Form 86 be granted; and

2.  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 10 September 2019 for leave to apply for judicial review (the “leave application”) of a decision which he did not identify other than by the name of the adjudicator of the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office (the “Board”).   He also named the Board as both the putative respondent and putative interested party. 

2.  Enquiries revealed that the Board constituted of the named adjudicator had made a decision dated 3 July 2019 (the “Decision”) dismissing the Applicant’s appeal against the decisions of the Director of Immigration (the “Director”) in his Notice of Decision dated 18 August 2016 (the “Notice”) and his Notice of Further Decision dated 1 August 2017 (the “Further Notice” and collectively, the “Notices”), refusing his application for non-refoulement protection.  It is obvious that the decision he sought to review is the Board’s Decision dated 3 July 2019.  Hence, on its own motion, the Court amended the Form 86 by identifying the Decision as the decision in respect of which relief is sought and substituting the Director for the adjudicator as the putative interested party.

3.  The Applicant had not requested an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the Notices, the papers, and all the circumstances, the Court considered that the application could be justly determined on paper without an oral hearing.

Background

4.  The Applicant is a Bangladeshi national.  He first entered Hong Kong on 26 December 2004 and overstayed since 29 December 2004.  He was arrested by the police on 27 August 2011 and was repatriated to Bangladesh on 5 December 2011.  He entered Hong Kong illegally and was arrested by the police on 14 May 2015.  On 20 July 2015, he made a claim for non-refoulement protection.  His claim was assessed on three applicable grounds then available under the USM, namely: Torture Risk^[1]; BOR 3 Risk^[2]; and Persecution Risk^[3] grounds.  His claim was rejected by the Director’s Notice.  On 1 August 2017, by his Further Notice, the Director also rejected his claim under BOR 2 Risk^[4] ground.  His appeal against the two Notices was dismissed by the Board’s Decision.  He now applies for judicial review of that Decision.  

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim (“NCF”) 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 people from the Awami League (“AL”) because of his support of the Bangladesh Nationalist Party (“BNP”).  

6.  The Applicant, now aged 59, was born in Village Tajpur, Sirajdikhan, Munshiganj, Bangladesh.  He is married with four children.  He had received 13 years’ formal education up to tertiary level and had experience working as a trader in construction materials from 1986 to 1999 and in running a garment business from 1986 to 2016 in Bangladesh and as a site engineer from 2001 to 2003 in Singapore.   

7.  The Applicant claimed that he had been a BNP member since 1985.  In mid-2003, around 10 AL members invited him to their party office.  In the office, they demanded him to transfer his land in Sirajdikhan to them.  They threatened to kill him if he failed to do so.  He requested more time to consider their demand.  A month later, he was invited to the AL office again.  He accepted the invitation but did not attend the meeting.  Instead, he moved with his family to Dhaka and stayed there until 2004. 

8.  After moving to Dhaka, he started receiving calls from the AL members threatening to kill him and his children if he failed to transfer his land to them.  Since the end of 2003, the AL members also started threatening him personally on the streets in Dhaka and Sirajdikhan.  Towards the end of 2004, he reported the case to the police in Sirajdikhan, but the police told him that if he filed any complaint against the AL members, his problem would be more serious.  On the advice of his friend, he left Dhaka to go to Hong Kong to avoid the AL members.  He was stopped at the Dhaka airport by the immigration officers and had to pay a bribe to be permitted to depart. Whilst in Hong Kong, his family told him that the AL members illegally occupied his land.  In December 2008, when his mother and wife went to vote in an election in Sirajdikhan, the AL members threatened them outside the election booth that their house would be burnt down if they did not vote for the AL.     

9.  The Applicant was repatriated to Bangladesh in December 2011 and he continued to live with his family in Dhaka.  In June or July 2013, when he was riding on his scooter back from Sirajdikhan to Dhaka, he was assaulted by five to six AL members in Rosonia.  He managed to escape.  One evening in December 2013, twelve AL members assaulted him with wooden sticks for about three minutes in Sirajdikhan.  They stopped and fled when a passer-by intervened.  He went to a nearby clinic where he stayed for a night for medical treatment.  On discharge, he made a report to the police in Sirajdikhan, but the police refused to register the complaint once they heard the AL was involved in the attack.  In January 2014, he learnt from his neighbours that the AL members and supporters went to his house in Sirajdikhan and asked for his whereabouts.    

10.  In February 2015, the Applicant was elected as vice-president of the BNP in the Sirajdikhan area.  One evening in March 2015, five AL members approached him in his shop in Dhaka.  They threatened to kill him if he did not stop his political activities.  They also said they would prepare documents for transferring his land to them.  They left after 15 minutes without harming him.  In April 2015, when he and his daughter were travelling from Sirajdikhan to Dhaka, around six AL members stopped his car, pulled him out and slapped him.  They fled when a passer-by intervened.        

11.  The Applicant also claimed that he was arrested by the police in Sirajdikhan a couple of times between 2013 and 2014 when he was persuading the public to boycott the elections.  On each occasion, the police arrested him and took him to the Sirajdikhan Police Station where they demanded a bribe from him.  On one occasion, the police even threatened to charge him with illegal possession of firearms, if he failed to pay a bribe. He paid on both occasions and was released.

12.  The Applicant believes he could not access state protection because the police in Bangladesh are corrupt and he is opposing the ruling party.  He does not believe internal relocation viable, as the AL members could locate him throughout the country through their powerful network. 

13.  The Applicant said that his daughter was approached by AL members on the street and asked for his whereabouts.  The same happened to his son, and when his son said why they need to know the Applicant’s whereabouts, he was slapped.  His wife also said that AL members went to his house and threatened to kill him if he did not transfer his land to them when he returned to Bangladesh.   

The finding of the Board

14.  The Applicant testified before the Board.  On the basis of credible country of origin information (“COI”), the Board accepted that politics in Bangladesh could be marred by violence and there was long-standing enmity between the AL and the BNP.  However, whilst inter-party and intra-party violence occurs in Bangladesh, the number of people affected by political violence remains low in proportion to the size of the major parties.  In general, the evidence does not indicate there is a real risk of state or non-state persecution or serious harm for ordinary party members or supporters.

15.  The Board found the Applicant had fabricated his claims as to what happened in Bangladesh in 2003 and 2004.  The COI showed that rather than the police doing the bidding of the AL at that time, the BNP government frequently used the police for their political purposes.  Police used excessive force against demonstrators from the opposition parties and sometimes detained opposition activists prior to and during demonstrations without legal authority.  The police arrested over 10,000 persons in reaction to the AL’s campaign to unseat the BNP government.  As such, the Board found the Applicant’s claim that he could not obtain assistance from the police because the police sided with AL fanciful.  Quite the opposite, the Board found that there was no reason why he could not obtain assistance from his party leaders and the police, as such assistance would have been forthcoming.  Hence, the Board was not satisfied that he was threatened by AL members and had to flee the country for his safety in 2004.

16.  His evidence at the hearing indicated that on his return to Bangladesh in 2011 he was more concerned with his business interests than with politics.   The Board found he only had a low level of interest in the BNP and did not appear to have been involved in any BNP activity or adverse incident before mid-2013.  Coupled with these findings, the Board rejected his claims that he had been attacked, threatened and even arrested several times because of his earlier dispute with AL members over his land as well as his political activities for the BNP from mid-2013 until his departure in May 2015. Though the Board found that it possible that his family members were threatened with harm by AL members for not voting for the AL during the 2008 election, it did not accept that they were threatened because they were his family members. 

17.  According to the COI, 2014 was the year of political turbulence in Bangladesh when tensions between the AL and the BNP were at their highest. While claiming to be a senior member of the BNP, the Applicant however gave no history of any of his political involvement in the lead up to the January 2014 election, but merely stated that the BNP boycotted the election.  The Board also found his statement that it was not possible for the BNP to hold public meetings in around February 2015 odd, because according to the COI, the BNP was very active during early 2015.  Having accepted the Applicant has had some association with the BNP, the Board nevertheless found that he had exaggerated the level of his participation in the BNP in order to found a claim for non-refoulement protection.  The Board found he was, at most, a low level member or supporter of the BNP prior his departure from Bangladesh. 

18.  The Applicant claimed that he was threatened by AL members in Sirajdikhan at the time and they wanted him to transfer his land to them.  Those threats continued in Sirajdikhan and Dhaka and so he had to move his family to Dhaka.  The Board found his accounts of where he and his family were located during this time confusing.  On the evidence, the Board found he and his family lived in Dhaka at that time, thus casting doubt on the credibility of his claims about the seriousness of the threats he faced. 

19.  Apart from the above, the Board noted inconsistencies in his evidence.  For example, he previously said that in December 2013, he was attacked by AL members with wooden sticks for a few minutes.  However, he told the Board that he had received knife threatening wounds that required stitches.  When confronted with the inconsistency, he said the details had not been written down, despite he had mentioned them previously.  The Board rejected his explanation, as he and his advisers had ample opportunity to correct the record if the detail had been omitted.  The fact that it was not mentioned previously led the Board to conclude that it did not occur.     

20.  The Board accepted that there are police failures, deficiency and corruption in Bangladesh and that despite there are complaint mechanisms the police could still act with impunity.  It was possible that he may not access state protection.  However, the Board found the risk is localized and given his education and work and business history, the Applicant could have no difficulty to relocate to other parts of Bangladesh to avoid the harm and risk of harm from the AL members.

21.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support his claims for protection under any of the applicable grounds under the USM.  Hence, it dismissed his appeal against the decisions in the Notices.  

Legal principles applicable to judicial review

22.  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[5].

Grounds for judicial review

23.  In his supporting affirmation, the Applicant advanced the following four grounds of appeal:

(1)  the Board’s Decision is incorrect and unreasonable;

(2)  the Board found the Applicant had reasonable knowledge of BNP but refused to accept he held an important post in BNP;

(3)  the Board incorrectly cherry-picked the COI against the Applicant’s case and not that for his case; 

(4)  the Applicant’s life would not be safe if he returned to Bangladesh.

24.  In effect, he is seeking to challenge the Board’s finding of fact that he had failed to prove that he would face real harm or real risk of harm if returned to Bangladesh.  For reasons as explained in the preceding section, this is not permissible in an application for judicial review.  In the absence of specific grounds of application, the Court could only focus on the usual challenges in a judicial review such as errors of law, procedural unfairness or irrationality in the Decision.

Overall scrutiny

25.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board 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. The Board analysed the evidence properly, tested it against common sense, the COI and inherent probability.  The factual background of his case did not accord with the COI.  The Board found him incredible and that he had exaggerated his case in order to found a claim for protection.  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

26.  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

Form CALL-1

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] [2018] HKCA 524 at [14(1)]