UDDIN MD REPON v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2302/2019

[2025] HKCFI 178

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2302 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;

The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 12 August 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 (“the Board”) dated 16 January 2018 (“Board's Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 12 July 2019 (“Director's Decision”) rejecting the applicant's non-refoulement claim.

2.  As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 10 December 2024. 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

3.  The background as taken from the respective decisions of the Director and the Board referred to above can be briefly stated as follows.

4.  The applicant was a Bangladesh national. He arrived in Hong Kong on 22 July 2015 from Mainland China and was arrested on the same day. On 25 July 2015, the applicant lodged a non-refoulement claim, and the applicant’s case was considered under all applicable grounds - the risk of torture, BOR 2 risk[1], BOR 3 risk[2] and persecution risk[3] under the USM.[4] The claim was based on his fear that if refouled, he would be harmed or killed by members of the Awami League (“AL”) because of the applicant’s background as a supporter and member of the Bangladesh Nationalist Party (“BNP”).

5.  The applicant claimed that before he fled his home country, he used to operate his own sanitary and cosmetic business in his village in Pobohati, and actively participated in activities in support of BNP. In January 2014, a member of AL came to his shop and started to demand for protection money from him. He was threatened when he was told that the gangsters would return to the shop with weapons if he did not have money to pay. Despite having reported the incident to the police, the police took no action as the police were on the side of the AL.

6.  In December 2014 and May 2015, the gangsters of the AL came to his shop and damaged the goods in the store with hockey sticks. They came for a few occasions and he was slapped once in 2014 and assaulted in 2015. He suffered a fracture to his left wrists and left middle fingers. Police took no action against these assaults. After the incident in 2015, the applicant decided to leave Bangladesh.

7.  In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds. The Director found that the level of risk and harm had not attained a minimum level of severity and no indication that the applicant’s claims were politically motivated. After having considered the country of origin information reports (“COI”), the Director was satisfied that state protection was available and that internal relocation alternatives were available and reasonable. Hence, the applicant’s appeal to the Board against the Director’s Decision.

8.  On 31 May 2019, the applicant gave evidence through a Bengali interpreter at the hearing before the Board. In his assessment of the applicant’s credibility, the Board found that the applicant’s evidence given at the hearing was vague and unsubstantiated, which evidence was completely at variance with the account he gave to the Director in his signed statement. More importantly, when the applicant was asked to explain for the inconsistencies, the applicant could offer no explanation for the discrepancies between the accounts he gave and was unable to explain to the Board which account could be true. In evaluating the risk of harm to the applicant, the Board decided to attach no credence to the applicant’s claim for refoulement, and found that the applicant’s appeal against the Director’s Decision failed on all applicable grounds.

Legal principles applicable to judicial review

9.  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

10.  The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation of the same date, he exhibited a copy of the Board’s Decision and the hearing bundle of the Board. In the “Background” section of his affirmation, the applicant contended that at the hearing before the Board, he had no lawyer and that he was not given enough time for the oral hearing. Since the applicant was acting in person, I asked the applicant to elaborate on these contentions. The applicant only repeatedly stated that his main reason for the issuing of the Leave Application was his desire to stay in Hong Kong longer as the political situation in Bangladesh was still bad. He was not able to condescend to any particulars of his intended challenge or specify any error or mistake the Board was said to have made.

11.  The Board’s Decision was arrived at after the evidence given by the applicant via the interpreter. The Board’s findings of the material inconsistencies of the applicant’s evidence was based on his examination of the evidence he gave to the Board, and the written statement he presented before the Director. These are findings of fact, which the court in a judicial review will not interfere with.

12.  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 in the Decisions of the Director and the Board. I find that it was perfectly open to the Board to come to its conclusion that the applicant’s evidence was not credible and that the applicant failed to discharge his burden of proving the asserted fears and risks.

13.  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

14.  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