MD MANSUR HOWLADER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2097/2019

[2025] HKCFI 1580

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2097 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;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Md Mansur Howlader (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 19 July 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 31 July 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“NRC”).

Background of the Applicant and the NRC

2.  The Applicant is a Bangladeshi. He was born on 25 December 1970 in Borishal, Bangladesh. He had received about 14 years of education and had obtained the degree of Bachelor of Arts. He had about 14 years of business experience.

3.  The Applicant claimed that his wife's paternal uncles (“Uncles”) would harm or kill him because of a land dispute between the Applicant’s wife and Uncles. He also claimed that members of the Bangladesh Nationalist Party (“BNP”) and members of the Rapid Action Battalion (“RAB”) would harm or kill him because he refused to join them.

4.  The Applicant made a torture claim under Part VIIC of the Immigration Ordinance, Cap. 115 (“torture risk”), which was rejected by the Director on 1 March 2013. His appeal to the Board was dismissed on 19 July 2013.

5.  On 14 March 2013, the Applicant lodged a claim for non-refoulement protection (i.e. the NRC). The Director assessed the NRC on the remaining grounds (other than torture risk) under the unified screening mechanism (“USM”):

(a)  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 (“BOR”) (“BOR 2 risk”);

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

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

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

7.  On 23 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Board as the proposed respondent and the Director as the interested party.

Legal principles applicable to judicial review

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

9.  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 [i.e. country of origin information] 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: 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.”

10.  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 reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

11.  A court hearing for this case was scheduled for 20 February 2025 when Mr. Kalachand of Choy Yung & Co appeared for the Applicant saying that their firm was approached on 18 February 2025 by the Applicant for this case. They had not yet had the opportunity to consider the papers in this case. He sought an adjournment of the hearing.

12.  To allow reasonable time for the Applicant’s legal representatives to consider the papers in this case, I adjourned the hearing to 13 March 2025 and granted leave for Choy Yung & Co to obtain from the court file a copy of the hearing bundle for the Appeal hearing before the Board which was lodged by the Applicant with the court.

13.  However, on 12 March 2025, the Applicant filed a notice to act in person. He attended the court hearing of 13 March 2025 (“Court Hearing”) in person.

14.  In the Form 86, the Applicant raised the following grounds for his intended judicial review which grounds were repeated in the Supporting Affirmation:

(1)  the Board did not give the Applicant an oral hearing. He was not given the proper opportunity to present his case; and

(2)  the Board relied on outdated and hearsay materials and wrongly found that it would be safe for him to return.

15.  It is plainly wrong for the Applicant to say that the Board did not give him an opportunity to make oral submissions. The Board held a hearing on 27 March 2019 for the Appeal and the Applicant had testified at the Appeal hearing before the Board. This proposed ground is clearly not reasonably arguable.

16.  The Applicant complained that the Board had relied on outdated and hearsay country of origin information (“COI”) materials. The Applicant did not give any particulars in the Form 86 or the Supporting Affirmation to substantiate this complaint. He was unable to provide any particulars for this complaint at the Court Hearing.

17.  By its nature, COI materials are hearsay evidence. According to the List of Reference appended to the DOI Decision, the COI materials considered by the Director, which were included in the hearing bundle for the Appeal hearing and considered by the Board, included materials dated 12 July 2018 when the Appeal hearing was held on 27 March 2019. The COI materials were not outdate. In fact, the Applicant had also submitted COI materials to the Director through the Duty Lawyer Service who assisted the Applicant in lodging the NRC (§5 of the DOI Decision). These COI materials had also been considered by the Director and the Board. None of the COI materials submitted by the Applicant was more up-dated than 12 July 2018 and the Applicant produced no up-dated COI materials to the Supporting Affirmation or at the Court Hearing. I see no merits in this complaint.

18.  In the Form 86, the Applicant further complained that:

(1)  the Board had unlawfully fettered his discretion by refusing the Appeal on the ground that it did not satisfy the requirements;

(2)  the Board acted in a procedurally unfair manner in deciding the Appeal;

(3)  the Board’s decision to refuse the Appeal was unreasonable or irrational in the public law sense or was a result of procedural errors or unfairness; and

(4)  the Board failed to meet the greater care and duty owed to self-represented claimant.

19.  All the above complaints were bare assertions without particulars or supporting evidence. At the Court Hearing, the Applicant only reiterated his disagreement to the findings and decisions of the Board. He maintained that his life would still be in danger if he were returned to Bangladesh. The fact that the Applicant disagreed to the Board’s findings and/or decision is not per se a ground for judicial review. Without particulars and supporting evidence, such grounds are not reasonably arguable.

20.  As pointed out in the Nupur Mst case (supra), assessment of evidence, COI materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board. The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.

21.  In disputing the findings on assessment on evidence, risk of harm, and COI materials, the Applicant sought to challenge the findings of fact of the Board which is not permissible in a judicial review unless in making such findings there were errors of law or procedural unfairness or irrationality. I find none in this case.

22.  The Board noted that the Applicant, after last leaving Bangladesh in April 2006, travelled to China on a number of occasions for business. He did not make any attempts to seek protection whilst in China nor did he seek protection in Hong Kong during his first visit on 21 April 2006 or subsequent visits after returning from China but only did so after he had been arrested. The Board was of the view that this conduct was inconsistent with that of someone who genuinely claimed to fear for his safety. The Board found that the failure of the Applicant to take advantage of all the opportunities he had to claim non-refoulement protection was behavior that was detrimental to his credibility.

23.  The Board found the Applicant’s testimony to be inconsistent with his statements to the Director. It also found his explanation for the inconsistencies to be incredible (e.g. end of §44(a) of the Board’s Decision). The Board found the Applicant’s evidence to be unreliable and did not accept his claim that he had been threatened by members of the BNP, members of the RAB or Uncles.

24.  The Board considered that each of the group that the Applicant claimed to fear to be non-state actors in respect of his alleged situations. The Board found that there was nothing to suggest that state protection would not be available to him (§64 of the Board’s Decision).

25.  The Board found that there was nothing to suggest that the incidents, even if they occurred as suggested by the Applicant, were anything more than localized ones. The Board was not persuaded on evidence that anyone would follow the Applicant around the country or that there were networks that would locate him. The Board found that internal relocation to Khulna or Mymensingh would be viable to the Applicant (§83 of the Board’s Decision).

26.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the relevant grounds for seeking non-refoulement protection (other than torture risk) under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

27.  In §§47-76 of the Board’s Decision, the Board had considered the Applicant’s claim under the persecution risk, the BOR 2 and BOR 3 risks. The Board found that the Applicant had not shown that there were substantial grounds for believing that, if returned to Bangladesh, there would be a real risk or substantial grounds for believing that he would be subjected to a real risk of the BOR 3 risk. The Board found that the Applicant had failed to establish that he would be subjected to persecution for any of the reasons referred to in Article 33 of the Refugees Convention if he were refouled to Bangladesh and his fear for the persecution risk was not well-founded. The Board also found that the Applicant had not shown that there were substantial grounds for believing that if refouled there would be a real risk or substantial grounds for believing that he would be subjected to a real risk of the BOR 2 risk. The Board further considered that there was sufficient state protection available to the Applicant were he to return to Bangladesh.

28.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under the remaining grounds (other than torture risk) 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 is not reasonably arguable and has no realistic prospects of success.

Conclusion

29.  In the premise and having considered the Board’s 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 NRC, and as I am not satisfied that the Applicant’s 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