DEWAN MD HATEM alias HATEM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2740/2019

[2025] HKCFI 3986

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2740 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 the Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 18 September 2019 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 12 September 2019 (the “leave application”) \ dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 14 December 2018 (the “Notice”), refusing his application for non-refoulement protection.

2.  The Applicant had requested an oral hearing.  A hearing on 13 August 2025 was scheduled and a warrant was issued on 4 August 2025 to the Director of Tai Tam Gap Correctional Institution where he was last known to have been detained for him to be brought before the Court.  The warrant was returned with a note on the same day that he had been discharged on 10 June 2025.  Another notice of hearing was sent to him by post on the same day to his address in Yuen Long which was obtained from the Immigration Department on 27 June 2025.  The notice of hearing has not been returned through the post.  He had never informed the court of any change of address since his discharge from Tai Tam Gap Correctional Institution.  There is nothing to suggest that he had not received the notice of hearing or had moved.   Two attempts were made on the morning of 12 and 13 August 2025 to contact him by telephone to remind him of the hearing, but the calls were not answered.  The Court was satisfied that the notice of hearing had been duly served on the Applicant and that the Court had tried its best endeavour to bring the hearing to his notice.   He did not appear at the hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

Background

3.  The Applicant is a Bangladeshi national.  His personal background, the factual background leading to the present application, the basis of his claim and the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below [1] for reference.  In gist, he claims that if returned to Bangladesh, he will be killed by people from the Awami League (the “AL people”) for refusing to quit the Bangladesh Nationalist Party (the “BNP”).

4.  The Applicant testified before the Board. The Board found significant inconsistencies between his evidence in his non-refoulement claim form (“NCF”) and his testimony before the Board.   He told the Board that he had been badly beaten by the AL people but he had never claimed before the immigration officer that he had ever been beaten at all.  While accepting he was a member of the BNP, the Board found he either fabricated his claim about his violent interactions with the AL people or exaggerated and embellished the severity of the harm he faced.  The Board was satisfied that he had never been personally assaulted, attacked or injured by the AL people in his village.  It accepted that he may have been subject to some harassment but did not accept the AL people had any intention to inflict serious harm on him.  Based on his own evidence and country of origin information, the Board was not satisfied that he would be pursued to Dhaka by the AL people.  It found he would not be at real risk of harm if relocated top Dhaka.  Applying the law applicable to the non-refoulement protection under the Unified Screening Mechanism (the “USM”) to the above facts, the Board found the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM.  Hence, it dismissed his appeal against the decision in the Notice.

Grounds for judicial review

5.  The Applicant has not advanced any grounds of application in his Form 86 or in his supporting affirmation.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and irrationality in the Decision. 

Overall scrutiny

6.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is 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 a very high standard of fairness. The Board conducted a rehearing.  It assessed the Applicant’s evidence carefully, tested it against common sense and inherent probability.  It found numerous and significant inconsistencies between his evidence in his NCF and in his testimony before the Board.  It found him incredible as regards the core issues of his claim.  It did not accept he had proved he would face a real risk of proscribed harm, if refouled.  It gave full reasons for its finding.  It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such findings were made as result of error of law, procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

7.  For the above reasons, the Applicant’s leave application is refused.

8.  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

[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL002740_2019_files/the_Board's_Decision.pdf