|
HCAL 2828/2019
[2025] HKCFI 3826
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2828 of 2019
| BETWEEN |
|
|
|
Parvej |
Applicant |
|
and
|
|
|
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
|
Putative Respondent |
|
and
|
|
|
Director of Immigration
|
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. The Form 86 is amended on the court’s own motion.
2. The application for leave to apply for judicial review be dismissed.
Introduction
1. By “a notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 25 September 2019, 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 19 September 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 11 May 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim.
2. In his Form 86, the applicant named both the Board and the Director as proposed respondents and interested parties. As the Board should have been the proper respondent and the Director interested party, the Form 86 will be amended accordingly on the court’s own motion.
3. At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 3 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.
Background
4. The background as taken from the Director’s Decision and the Board’s Decision can be briefly stated as follows.
5. The applicant is a national of Bangladesh. He left Bangladesh for China on 4 October 2014 and stayed there for around 6 months before he sneaked into Hong Kong from Shenzhen by boat on 2 July 2015. He surrendered himself to the Immigration Department on 5 August 2015. The applicant raised his non-refoulement claim on 31 March 2016.
6. The applicant’s claim was considered under all applicable grounds i.e. risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on a fear that if refouled, he would be harmed or killed by members and/or supporters of the Awami League (“AL”) due to his support for the rival Bangladesh Nationalist Party (“BNP”) and refusal to join the AL.
7. According to the applicant, he and his father were BNP supporters. The father was the President of Union and a leader of the local BNP while the applicant was an ordinary member of the Student Wing of the local BNP. In his home area, the AL knew that the applicant supported the BNP. Sukumar Ranjan Ghosh (“Ghosh”) of the AL, was a Member of Parliament and a minister from Munshiganj district, wanted the AL to remain in power in the 2014 election. Hence, he instructed the Union Chairman of the AL, (Kaji), and the Secretary of the AL, (Mithun), to persuade BNP supporters to switch allegiance to AL. In around mid-2012, they attempted to persuade the applicant and his father to join the AL, but he and his father refused.
8. One morning in early 2013, Kaji and Mithun led a group of about 10 people to attack the applicant’s father with wooden sticks. His father sustained open wounds on the back of his head, as well as cuts and bruises on his back. Some neighbours told the applicant about the attack. The applicant and his mother and sister ran to the scene of the attack, and tried to take his father to the hospital. However, some of the assailants slapped the applicant on his face and hit him with a wooden stick. Before leaving, Kahi threatened the applicant that if he did not join the AL, all would be killed.
9. On the same day, his father and family and some relatives went to the police station to report the attack. However, the police did not record the complaint and told them to leave. A senior police officer even said that they had order(s) from “the top level” not to accept any complaints against Mithun, Kaji and their people.
10. The next day, one of the two huts comprising the applicant’s home caught fire. The hut in which the applicant slept was burned down. The applicant managed to escape and call for help. A few hours later, he and his father, together with his uncle and BNP general secretary went to the police station to report about the fire. A different senior police officer told them that Ghosh had instructed him to tell them that if they quit the BNP and join the AL, they would not be harmed anymore and they would be compensated for their loss. However, if they refused, their lives would be under threat. About 10 minutes later, Mithun, Kaji and around 10 of their men came to the police station. When the applicant and his father left the police station, Kaji admitted the setting of the fire to their houses. He threatened that if he did not join the AL party, the applicant’s death was ensured.
11. Around 20 days later, a group of about 20 AL supporters led by Mithun and Kaji, surrounded and attacked the applicant and his friends with choppers. The applicant sustained wounds on the back of his left hand, left ankle and on the right side of his jaw. He lost a lot of blood and lost consciousness. His mother and uncles took him to the Dhaka Medical College Hospital, and he was hospitalized for a month. After he was discharged from hospital, he stayed in his aunt’s house in Dhaka for another month for follow-up treatment. His father also stayed with him at his aunt’s house. He and his father never returned home again. On 4 October 2014, the applicant left Bangladesh.
12. In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds. Hence, the applicant’s appeal to the Board against the Director’s Decision.
13. On 29 July 2019, the applicant attended a hearing before the Board. At the Board hearing, the applicant gave oral testimony and answered questions from the Board.
14. The Board found that the applicant was not a credible witness due to major discrepancies between his testimony at the Board hearing and his prior evidence given to the Director. The Board raised these discrepancies with the applicant, but he was unable to provide a satisfactory explanation. The Board found that the inconsistences could not be reconciled even if it had taken into account of the lapse of time and possible loss of memory. The Board did not accept his evidence.
15. After having considered the country of origin information (“COI”), the Board found that the state was able to offer effective protection, and found that internal relocation would be viable. Thus the Board concluded that there would be no real risk of harm, and dismissed the applicant’s appeal and confirmed the Director’s Decision.
Legal principles applicable to judicial review
16. As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. 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: see 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.
Discussion and conclusion
17. In his supporting affirmation, the applicant stated that the Board’s Decision was biased and based on information that was irrelevant and inapplicable.
18. At the hearing, this court asked the applicant whether he had any further grounds he wished to submit in support of the Leave Application. The applicant stated that the problems were much worse than before. Hence, he could not go back.
Discussion and conclusion
19. It is plain that the applicant’s only written grounds set out in his supporting affirmation were vague and do not condescend to particulars. Neither was he able to advance any grounds at the oral hearing specifying on what basis the Board was said to have acted unlawfully or procedurally unfair in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.
20. After having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. There was no misapprehension of facts despite the apparent differences between the applicant’s evidence that he and his father only stayed with his aunt at Dhaka for about 2 months whilst the Board stated that he stayed that for about one and ½ year (Board’s Decision at [29]). It was the applicant’s evidence that he stayed therefore until he left for China in October 2014. Since the alleged assault was in early 2013. Hence, the Board was correct in stating that he had stayed for more than one year. I am satisfied that there were no errors of law or procedural unfairness or irrationality in the Board’s Decision.
21. For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.
Order
22. The Form 86 be amended on the court’s own motion.
23. The applicant’s application for leave to apply for judicial review be dismissed.
Dated the 29th day of August 2025
| |
(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:
|
|
|
|
|
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)).
|
|
Sent to the Applicant
on 29/8/2025
Parvej
Applicant’s ref. no:
Nil
|
|
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 29/8/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11833/18/6/12/B1277
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1507/18 (Formerly RBCZ 11531/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
|
Form CALL-1
[1] This refers to the risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap.115.
[2] This refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”).
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR.
[4] 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.
[5] This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293.
|