AMIN ULLAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3669/2019

[2025] HKCFI 1913

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3669 of 2019

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 Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 (“Form 86”) dated 10 December 2019, 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 26 November 2019 (“the Board’s Decision”) affirming the decision of the Director of Immigration (“the Director”) dated 22 June 2018 (“the Director’s Decisions”), which rejected his non-refoulement claim on all applicable grounds (“the Grounds”) other than torture risk.

2.  I have amended Form 86 on my own motion, naming only the Director as the proposed interested party.

Background

3.  It is unnecessary for me to restate the facts of the present case here. The Applicant’s personal background, his case and claim, including the incidents alleged by him to show that he would be harmed or killed by Awami League (AI) and Chatra League (CI) in Bangladesh, and the immigration and procedural history, etc. were set out in details in the Board’s Decision. For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.

Discussion

4.  In support of his intended judicial review, the Applicant has raised the following grounds:

(1)  “It is trite law that a hearing before the Appeal Board is a rehearing, and the Adjudicator is required to consider afresh the original decision and arrive at this own determination in respect of the claims.” (Ground 1)

(2)  “The respondent’s decision to refuse the applicant’s appeal were unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness.” (Ground 2)

(3)  “The Director had unlawfully fattered [sic] his discretion by refusing the applicant’s appeal on the grounds that they didn’t satisfy with the requirements.” (Ground 3)

(4)  “The respondent failed to meet the greater care and duty owned [sic] to a self-represented claimant.” (Ground 4).

(5)  “The Adjudicator acted in a procedurally unfair manner in dealing with the applicant’s appeal.” (Ground 5)

(6)  “It must be keep [sic] in mind that the life and limb are in jeopardy and the applicant’s fundamental human rights not to be subjected to torture in involved [sic].” (Ground 6)

(7)  “In dismissing the applicant’s appeal/petition, there is no indication that the Adjudicator interacted with the facts of applicant’s claim, conducted any analysis of the supporting documents or turned his mind to the ground under consideration being the risk of violation of the applicant’s right to life under BOR 2.” (Ground 7)

(8)  “The applicant will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on source of news which is not officially recognized, or it is simply hearsay.” (Ground 8)

(9)  “The characterization of the appeal process is grounded in the consistent practice of the Appeal Board in treating each appeal/petition as a de novo hearing, whereby the appeal Board is not confined to any grounds of appeal put forward, but considers all the facts of the claim afresh to come to its own findings. The established practice of the appeal Board in this regard is either grounded and illustrative of its relevant obligations; and/or in any case has induced a procedural expectation that a claim would be considered afresh under applicable grounds.” (Ground 9).

(10)  “The Adjudicator has relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculation.” (Ground 10)

(11)  “In spite of the applicant’s problems in his home country are very severe and he had already submitted the documents on behalf of the applicant’s claim, the Adjudicator of the Torture Claims Appeal Board may not be greater caring [sic] and made the claimant disappointed.” (Ground 11)

(12)  “The applicant is a Bangladeshi citizen and was born on 20 November 1983. He was born in B. Baria district in Bangladesh. The applicant entered Hong Kong on 10 January 2013. He lodged a torture claim by way of written representation on 15 June 2013. The applicant lodged a Torture Claim Form on 30 August 2013. He completed ten years of formal education in 2004. He worked in the family clothing Business from 2005 to 2008. His father is deceased and his mother was living in the family home in village Shikarpur; however, she was subsequently passed away. In 1997 He joined the chattra shibir (CS), the student wing of Jamaat-e-Islami (JI). The applicant became the owner of the family clothing shop after the death of his father. From 2006 after the caretaker government came into power the applicant started having problem/ trouble. And one time he had to leave his home country for saving his life from his enemies. His enemies tried to kill him but he saved his life anyway and he want to survive in the world.” (Ground 12)

(13)  “The applicant has the torture risk in his home country. If he return [sic] back to his home country he will be tortured by his enemies. His enemies even can kill the applicant – because of his supported political party named Jamaat-e-Islami (JI). The Jamat-e-Islami (JI) was banned by the present ruling party Awami League (AL), so the Bangladesh police folloing [sic] by the present ruling party AL had killed many members of Jamat-e-Islami and its wing’s party, and police also arrested many of this party’s member. Bangladesh police tortured the many members of JI party. If police find the applicant they will kill him. If the members of AL party who are ruling party they will kill the applicant. The applicant already was tortured by his enemies who are now ruling party’s members in Bangladesh.” (Ground 13)

(14)  “The applicant has the persecution risk in his home country. The applicant already had been tortured by his enemies and by the Bangladeshi police. The applicant was persecuted by his enemies and by the Bangladesh police. He could not get help from Bangladeshi police. The applicant was tortured by his enemies in physically [sic] in Bangladesh. Police did not help him. Bangladesh police will not help him because of his involvement with banned political party JI. Many members of this (JI) party already persecuted by the present government party’s members and by the Bangladesh police.” (Ground 14)

(15)  “The applicant’s present situation do [sic] not support him to return back to his home country. His enemies will kill him if he return back to his home country. Police also will torture or even kill him because of his banned JI party if he return [sic] back to Bangladesh.” (Ground 15)

(16)  “I request to the court to investigate my claim and to scrutiny [sic] my claim in Bangladesh and save my life.” (Ground 16)

5.  I am not satisfied that the Applicant’s intended challenge of the Board’s Decision, based on any of the above grounds, is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676), and have therefore refused leave.

6.  First of all, I bear in mind that in reviewing the Board’s Decision, it is essential to apply an enhanced standard with rigorous examination and anxious scrutiny, given the gravity of the issues involved (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).

7.  The Board found that a significant amount of the information the Applicant presented during the hearing differed from what he had submitted in his written claims and during his two immigration interviews. The discernible inconsistencies and omissions in the Applicant’s evidence weakened the validity of his claims. Based on the available evidence, the Board made the following findings of facts. After applying the relevant legal principles, it was not convinced that the Applicant had successfully shown the risks:

(1)  The Board did not accept that the Applicant was a member of the CS or the JI. It found that the Applicant had never held the position of Secretary of the JI in his local area. Additionally, the Board rejected the claim that the Applicant was assaulted and did not accept that he had to relocate because he was threatened or assaulted.

(2)  The Board did not accept that the Applicant would face significant issues upon returning due to his political opinion or allegiance. It found that the Applicant had not provided a truthful account of his reasons for leaving the country and his reluctance to return.

(3)  The Board was satisfied that the Applicant did not face a real chance of harm now and in the reasonably foreseeable future in Bangladesh from his relatives, AL members or supporters, or CL members or supporters, or any other persons.

(4)  The Board was also satisfied that there were no substantial grounds for believing that the Applicant faced a real chance of severe pain or suffering, whether physical or mental, being intentionally inflicted on him by any person in the foreseeable future in Bangladesh.

(5)  There was no credible evidence before the Board to indicate that the Applicant faced a real chance of harm inflicted by, or with the instigation, consent, acquiescence, or encouragement of a public official or other person acting in an official capacity. The Board was satisfied there were no “substantial grounds” for believing that the Applicant was at risk of being subjected to torture in Bangladesh now and in the foreseeable future.

(6)  The Board was also satisfied that the Applicant did not face a real chance of serious harm, serious discrimination, or serious violations of human rights if he returned to Bangladesh. It found that his claimed fears of persecution were not well-founded.

(7)  Similarly, the Board did not accept the Applicant’s claim that he faced a real risk that his right to life would be violated if he returned to Bangladesh. It Board found that the Applicant’s claims in relation to BOR 2 had no credible basis.

(8)  The Board was satisfied that there was no genuine or substantial risk of the Applicant being subjected to torture or to cruel, inhuman or degrading treatment or punishment, or to physical or mental suffering, by his relatives, AL members, CL members, or any other person in Bangladesh. As such, the Board found that there were no substantial grounds for believing that the Applicant’s rights under BOR 3 would be violated if he returned.

8.  The Applicant has not identified any errors of law or procedural unfairness or irrationality in the above decision of the Board.

9.  Grounds 1 and 9 merely articulate the general legal requirements, but the Applicant has not demonstrated that the Board was in breach of its duties. From the Board’s Decision, it is clear that it conducted the rehearing properly, carefully reevaluating the evidence and making its decision based on the available evidence. Therefore, it is evident that these grounds are unsubstantiated.

10.  I also reject Grounds 2 to 5. The Applicant’s general assertions that the Board was unreasonable or unfair, unlawfully fettered its discretion, failed to meet its duty owed to a self-represented claimant, or acted in a procedurally unfair manner do not constitute valid grounds for judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244). These claims consist of vague ‘key words’ and ‘phrases’, resembling pro forma statements commonly seen in such applications, without adequately identifying specific errors or substantiating the complaints.

11.  Both Grounds 6 and 7 are at odds with the Board’s Decision. After assessing all the evidence, the Board was not satisfied that the Applicant had shown the elements of torture, or established a well-founded fear of persecution. There were no strong or substantial grounds for believing that there was a risk of violation to his right to life or a real risk or substantial grounds for believing that he would be subjected to torture or cruel, inhuman or degrading treatment or punishment if he were refouled.

12.  Ground 8 does not advance the Applicant’s case any further. The Board made factual findings regarding the Applicant’s claim after the hearing, based on his individual allegations, the risk (or otherwise) of harm, the availability (or otherwise) of state protection and the viability (or otherwise) of internal relocation, etc. It must be recognized that the Board was the primary decision‑maker, empowered to evaluate the Applicant’s evidence (see Satnam Singh v Director of Immigration & Another [2019] HKCA 433 at §11.1).

13.  Ground 10 is entirely unmeritorious. It does not specify the allegedly “outdated” cases or the information considered by the Board, which allegedly lacked “credible” source.

14.  As for Ground 11, it is not for the Court to form a fresh view on whether the Applicant would face any of the prescribed risks of harm. It is incumbent on the Applicant to make his case completely. In the absence of procedural or public law error, the role of the Board should not be usurped (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, and Re Masoom Parvez [2018] HKCA 163).

15.  Grounds 12 to 16, which merely regurgitate the Applicant’s case and arguments before the Board, must fail. A leave application does not operate as a rehearing of the appeal before the Board. It should not be used as an avenue to re-run arguments that have already been canvassed.

Conclusion

16.  For these reasons, I make an order that Form 86 be amended as described above and the Leave Application 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