AZAD HUMAYUN AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1953/2019

[2025] HKCFI 218

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1953 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 Applicants in open court;

Leave for the Applicants to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Mr. Azad Humayun (“1^st Applicant”) and his wife Ms Begum Rojina (“2^nd Applicant”) (together “Applicants”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 2 July 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 9 October 2018 (“DOI Decision”) in refusing the Applicants’ claims for non-refoulement protection (“Claims”).

Background of the Applicant

2.  As set out in the DOI Decision and the Board’s Decision, the Applicants are Bangladeshis. The 1^st Applicant was born on 1 June 1986. The 2^nd Applicant was born on 9 February 1992.

3.  The 1^st Applicant was born in Pirojpur, Bangladesh. He received 8 years of education and had 8 years of work experience. He worked as a shop assistant, a farmer and a supervisor.

4.  The 2^nd Applicant was born in District Gopal Gonj, Bangladesh. She attained education level of Class 8 in Bangladesh and worked as a foreign domestic helper in Hong Kong.

Procedural History

5.  The 1^st Applicant first entered Hong Kong on 2 March 2007 by sneaking into Hong Kong from Mainland China. On 31 July 2007, he raised a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT Claim”). He withdrew the CAT Claim and voluntarily returned to Bangladesh on 4 October 2010.

6.  The 1^st Applicant entered Hong Kong illegally again in around April 2013. He made another claim for non-refoulement protection on 23 October 2013.

7.  On 26 February 2016, the 2^nd Applicant arrived in Hong Kong to work as a foreign domestic helper. Her employment was terminated prematurely on 1 May 2016. She had to leave Hong Kong on or before 15 May 2016 but she overstayed. She made a claim for non-refoulement protection on 3 November 2016. She gave birth to the son of the 1^st Applicants in Hong Kong on 20 July 2017 (“Son”). She made a claim for protection on behalf of Son on 15 December 2017.

8.  On 1 September 2017, the 1^st Applicant made a request to the Director for his claim to be assessed jointly with the claims made by the 2^nd Applicant and to be made by Son. The Director agreed.

9.  The Director had considered the Claims on all applicable grounds under the Unified Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (the “Ordinance”) (“torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (the “BOR”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

10.  By the DOI Decision, the Director refused the Claims. The Applicants and Son later filed an appeal/petition to the Board (the “Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

11.  On 11 July 2019, the Applicants (without Son) filed the Form 86 herein (the “Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicants filed their joint supporting affirmation on the same day (the “Supporting Affirmation”). In the Form 86, the Applicants named the Board as the proposed respondent and the Director as the interested party.

12.  I noted that Son was not included in the Form 86 as one of the applicants. At the court hearing of 12 September 2024, I made enquiries with the Applicants who informed me that they intended to include Son in this application for leave for judicial review. As such, I granted leave for the Applicants to make necessary amendments to the Form 86 and to file further affirmation in support of Son’s case. I adjourned the hearing to a date to be fixed to allow time for the Applicants to comply with the aforesaid directions and to seek legal assistance for Son.

13.  However, instead of amending the Form 86, the 1^st Applicant filed an affirmation on 25 September 2024 applying to withdraw his intended judicial review application (“A1’s Withdrawal Application”).

14.  As the 2^nd Applicant was not included in A1’s Withdrawal Application, the court wrote to the Applicants on 8 October 2024 seeking clarification of the 2^nd Applicant’s stance. On 6 November 2024, each the 1^st and 2^nd Applicants filed an affirmation confirming that both of them wanted to withdraw their cases and to return to their home country (“Applicants’ Withdrawal Applications”).

15.  I decided to deal with the Applicants’ Withdrawal Applications and their application for leave for judicial review by paper disposal.

The Claims

16.  The 1^st Applicant was a member of the Awami League (“AL”), a political party in Bangladesh. In around 2006, he became the senior leader of the local Malikhali Union of the party. He had a dispute with the local leader (“B”) of the Bangladesh Nationalist Party (“BNP”), another political party in Bangladesh. B made a death threat to him through BNP members.

17.  The 1^st Applicant returned to Bangladesh in 2010. By then, B had switched his support to the AL and become the chairman of the AL in Malikhali. B was also close to a member of the parliament (§20 of the Board’s Decision). Not wanting to remain in the same party as B and after learning of the terrorism activities perpetrated by the AL, the 1^st Applicant started supporting another political party, Jamaat-e-Islami (“JEI”). His change of political affiliation was later discovered by the AL people.

18.  In a night in February 2011, B led some AL supporters and uniformed police officers (totaling 10 to 12 people) to the 1^st Applicant’s home. They hit his then wife (not the 2^nd Applicant) on the head with an iron rod and she later died as a result of the attack. The other attackers attacked the 1^st Applicant with a knife and he lost consciousness (“1^st Attack”). The 1^st Applicant was hospitalized for 10 or 12 days. He did not make a police report because some of the assailants were police officers.

19.  The 1^st Applicant fled to Dhaka after the 1^st Attack, where he met the 2^nd Applicant. They got married in October 2011. They later decided to return to the 1^st Applicant’s home village. Soon after his return, his neighbours told him that B had learnt of his return.

20.  The brother of B (“L”) and three or four of L’s associates tried to attack the 1^st Applicant with a knife when he was walking alone on the street (“2^nd Attack”). He managed to escape. After the 2^nd Attack, the Applicants fled to Dhaka.

21.  The Bangladeshi government controlled by the AL ordered the arrest and execution of many JEI leaders towards the end of 2012. The 1^st Applicant decided to flee to Hong Kong to avoid being harmed. He had to leave behind the 2^nd Applicant due to the lack of money.

22.  The 2^nd Applicant’s claim is based on the following facts. In 2009, she married the public secretary of the AL (“S”) in an arranged marriage. S often got drunk and physically assaulted her. In around 2010, S attacked her, causing her to miscarry. She then filed for divorce and went to live with an aunt in Dhaka.

23.  To take revenge of the 2^nd Applicant’s divorce, S arranged for the arrest of her father. Her father was detained for a month, when he was assaulted and threatened. He was only released because he needed medical treatment for the injuries he sustained during the detention. Her family home had been vandalized and her mother was often harassed.

24.  The 1^st and 2^nd Applicants had run into S on the street on several occasions in the past. S verbally abused them on those occasions.

25.  The 1^st Applicant was sentenced to imprisonment for offence committed after he came to Hong Kong in 2013. The 2^nd Applicant lost contact with him when he was imprisoned. She became the target of harassment of B and B’s associates after the 1^st Applicant came to Hong Kong. She recognised some of B’s associates as being affiliated with S.

26.  At the end of 2014, 5 to 6 people came to the home of the 2^nd Applicant to ask for the whereabouts of the 1^st Applicant. One of them hit her head with an iron rod and she lost consciousness. They also set her home on fire but she was rescued before she was hurt (“3^rd Attack”).

27.  The 2^nd Applicants was taken to a hospital and received treatment for 3 weeks. She lived with a relative in Dhaka after being discharged.

28.  About two to three months later, an acquaintance of S (“T”) led 6 to 7 people to her relative’s home and abducted her. Some of the abductors participated in the 3^rd Attack. They raped her and she lost consciousness due to pain and fear (“4^th Attack”).

29.  The 2^nd Applicants was hospitalized for a month after the 4^th Attack. She did not make any complaint to the police because they did not help her father in the previous occasion.

30.  The 2^nd Applicant came to Hong Kong to work as a foreign domestic helper on 26 February 2016. She managed to reunite with the 1^st Applicant while in Hong Kong.

31.  The Applicants claimed that upon their return to Bangladesh, they and Son would be harmed or even killed by (1) B and his AL people, (2) Bangladeshi government and people opposing JEI, and (3) S and his AL people.

The DOI Decision

32.  For reasons set out in §§28 and 29 of the DOI Decision, the Director found the cases of both Applicants not credible. Their late applications to seek protection and the explanations given had much deviated from the behaviour of a person who was in real and imminent risk. The Director did not accept that the Applicants had a real need and purpose of seeking overseas protection as claimed.

33.  However, their claims were nonetheless assessed as if credibility was not at issue.

34.  The Director was of the view that the 1^st Applicant’s problem with B was mainly private grudge between them and the 2^nd Applicant’s problem with S was a private issue in a marriage. There was no evidence to show that such problems had been in connection with political views and had been escalated to the official level of the parties and government.

35.  The Director had considered the injuries sustained by the Applicants in the various Attacks and did not accept that the ill-treatment, whether physical or mental, inflicted upon them attained a minimum level of severity.

36.  The 2^nd Applicant was assaulted and raped by AL members because she refused to reveal the whereabouts of the 1^st Applicant. The attack was originated from the 1^st Applicant’s grudge with B which was a private matter. There was no indication that any public officials were involved. The Director was of the view that the 1^st Applicant’s enemies did not have any real or settled intention to further pose harm or threats on the 2^nd Applicant because, all along the incident, the 1^st Applicant was their target. Coupled with the Director’s findings of availability of reasonable state protection and internal relocation alternative, it was not established that the 2^nd Applicant would face a real and substantive future risk of harm from the 1^st Applicant’s AL enemies upon her return to Bangladesh.

37.  For reasons set out in §36 of the DOI Decision, the Director was of the view that the behaviours of B, S together with their AL people showed no real intention to severely and continuously harm or kill the Applicants. They had the ability, time and opportunity to do so in the past, but they did not do that. The Director found that the Applicants’ assertion of being seriously harmed and killed by their enemies upon their return to Bangladesh was far-fetched and speculative.

38.  For reasons set out in §32 of the DOI Decision, the Director was of the view that the news article submitted by the Applicants to the Director indicated a small future risk of harm from the government, due to the 1^st Applicant’s participation in JEI activities, upon the Applicants’ return to Bangladesh. The Director noted that JEI as a political party had not been banned per se as illegal.

39.  The Director found that the availability of reasonable state protection and the existence of viable internal relocation alternatives negated the alleged risks to the Applicant.

40.  The Applicants’ problems with B and S were private by nature, their acts or their men’s acts, if any, to harm the Applicants did not represented the official stance taken by the political parties and the Bangladeshi government. There was no indication that the authorities were involved in, indifferent to or provided any form of encouragement to them in threatening, abusing or attempting to kill the Applicants.

41.  On the issue of state protection, the Director found that there were objective indications in the country of origin information ("COI") showing that the Bangladeshi government was able and willing to protect the rights of its citizens and there were official channels available in Bangladesh to facilitate complain against the misconduct of the police, if any.

42.  There was no evidence to suggest that B, S and their AL people could mobilize the nationwide resources and manpower to locate the Applicants. The Director found that internal relocation would be viable to the Applicants. If the Applicants moved to Chittagong or Khulna, their adversaries would have great difficulties in locating them. There was no substantial ground to believe that their adversaries had the abilities and resources to locate the Applicants nationwide in Bangladesh, notwithstanding their alleged political affiliation. The Director noted that their disputes with the Applicants were private in nature and their actions did not represent the Bangladeshi government (§37 of the DOI Decision). After considering their age and work experience, the Director found that it would not be unduly harsh to expect them to relocate to those areas and lead a normal life.

43.  For the reasons set out in the DOI Decision, the Director rejected the Claims.

The Board’s Decision

44.  After considering the Applicants’ claims including their written evidence, the records of their interviews, their notice of appeal and their oral evidence given at the hearing before the Board, the Board formed the view that the Applicants were not witnesses of truth and that they fabricated their claims for protection.

45.  The Board expressed serious concerns about the Applicants’ claim that they had lost contact with each other after the 1^st Applicant was imprisoned in Hong Kong.

46.  After a detailed inquiry into how the Applicants lost contact with each other and what they purportedly did to re-establish contact, the Board found that both Applicants could have made more efforts in re-establishing contact with each other but they apparently did not do so. Their evidence about what happened during the imprisonment of the 1^st Applicant and how they came to be reunited was vague, inconsistent and unconvincing, which led the Board to question the overall credibility of their cases. (§§44-50 of the Board’s Decision)

47.  The Board also expressed serious doubt as to the 1^st Applicant’s alleged affiliation with the AL. In §§53-55 of the Board’s Decision, the Board set out the 1^st Applicant’s answers to the Board’s concerns. The Board considered that his evidence was vague and inconsistent. The Board considered that the 1^st Applicant had invented evidence at the hearing in response to the Board’s questions. The Board considered that this part of the 1^st Applicant’s evidence further weighted against his credibility.

48.  The Board then asked the 1^st Applicant about his alleged involvement with the JEI. The 1^st Applicant failed to identify any of the key policies of the JEI and the Board asked him how he could work for the JEI without knowing those policies. He then claimed that he never worked for the JEI and only became a member of the JEI to benefit from its protection, which the Board found to be inconsistent with his claim to the Director that he worked for the JEI.

49.  The 1^st Applicant explained that working for the JEI had the same meaning as being a member of the JEI in Bangladeshi. The Board rejected this explanation as incredible. (§57 of the Board’s Decision)

50.  The Board rejected that the 1^st Applicant was a member of or worker for AL or JEI or was a union level president of AL. The Board also rejected that the 1^st Applicant had ever been assaulted or threatened by any supporters of BNP and/or AL or by the Bangladeshi state authorities.

51.  The Board informed the 2^nd Applicant that the alleged involvement of the 1^st Applicant in the AL and the JEI were incredible and this had implication on her credibility as well. This was because she claimed to have been targeted by B by virtue of the 1^st Applicant’s political affiliation. She only reiterated to the Board that the enemy of the 1^st Applicant had harmed her and raped her and did not respond to the Board’s concerns about the credibility of the 1^st Applicant.

52.  For the same reasons of rejecting the 1^st Applicant’s evidence, the Board also rejected as not credible the 2^nd Applicant’s claims that she was targeted for harm because of her marriage to the 1^st Applicant.

53.  The Board only accepted that the 2^nd Applicant married S and that S was abusive towards her, but it rejected the rest of her case for being incredible. The Board did not accept that S arranged the arrest of the 2^nd Applicant’s father or that S was connected to AL or the police. The Board considered that the 2^nd Applicant had exaggerated her claims so as to aggravate the risk of harm to her from S. (§65 of the Board’s Decision).

54.  The Board rejected that the 2^nd Applicant had been attacked, abducted or raped by anyone (including those associated with S or B) and that she was hospitalized following the abduction.

55.  The Board found that the Applicants were incredible and had failed to establish their cases on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

56.  In a judicial review, the court does not step into the shoes of the decision makers.

57.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

58.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

59.  The Applicants did not advance any grounds for their intended judicial review in the Form 86. In the Supporting Affirmation, the Applicants only stated: “Affirmation for our non refoulement protection claim under USM. Decision is given by Torture Claims ‘Appeal’ Board Adjudicator. All my statement are true.” They then produced the Board’s Decision and the hearing bundle for the hearing before the Board as exhibits to the Supporting Affirmation without other supporting documents.

60.  No proper ground for their intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicants did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

61.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

62.  The Board found that the Applicants were not witnesses of truth. The Board considered that the 1^st Applicant had fabricated his entire history of political activities and his claimed past harm in Bangladesh so as to create a basis upon which to apply for non-refoulement protection in Hong Kong. Based on credible evidence before the Board, the Board considered that there was no real risk of the proscribed harm to the Applicants from B, supporters of AL and/or BNP, and/or the Bangladeshi state authorities, if the Applicants were refouled to Bangladesh. The Board considered that there was a remote or speculative risk (not a real risk) that S would target the Applicants if they were refouled to Bangladesh. The Board found that the Applicants had failed to establish that they had a well-founded fear for the persecution risk or the torture risk nor a genuine and substantial risk of being subjected to the BOR 2 risk or the BOR 3 risk.

63.  It was on such basis that the Board found that the Applicants had failed to prove their entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review has no realistic prospects of success.

The Withdrawal Application

64.  The Applicants subsequently filed the Applicants’ Withdrawal Applications on 6 November 2024 applying to withdraw this intended judicial review application. They both stated that all their problems had finished and they wanted to go back to their home country.

65.  There is no evidence to show that the Applicants made the Applicants’ Withdrawal Applications other than out of their own volition.

66.  Apart from the Applicants’ Withdrawal Applications, there is nothing outstanding in this action.

67.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

68.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claims, and as I am not satisfied that the Applicants’ intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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