ALI MD YUSUP v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2539/2019

[2025] HKCFI 1866

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2539 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.

Observations for the Applicant:

Introduction

1.  This is an application by Mr Ali Md Yusup (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 21 August 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 23 January 2019 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.  The Applicant is a Bangladeshi. He was born on 15 October 1979 in P.S. Lumarkhali, District Kushtia, Bangladesh. He received about 5 years of education and had about 27 years of work experience. From 2009 to 2016. He ran his own fashion shop (“Shop”) in his home village.

3.  The Applicant claimed that people associated with the political party the Awami League (“AL” and “AL people”) would harm or kill him because he supported the opposing political party, the Bangladesh Jamaat-e-Islam (“Jamaat”).

4.  The Applicant claimed that both he and his family supported the Jamaat. He did not have any position in the Jamaat but he attended Jamaat’s meetings and rallies and he also asked others to support the Jamaat. His youngest brother was fully involved in politics and held a senior post in the Jamaat at the district level. He claimed that there were conflicts between the AL supporters and the Jamaat supporters in his home village since 2009.

5.  On several occasions in 2010, the Applicant was attacked by the AL people at the Shop. He reported the attacks to the local police but they did not take any action.

6.  On a day in 2014, some AL people attacked the Applicant in his house. After the attack, the police falsely accused him of participating in a fight and he was remanded in a prison for three months (“2014 Case”).

7.  Between 2012 and 2015, the Applicant had to pay protection money to the AL people. He was attacked by the AL people in late 2015 for failing to pay protection money. He reported that attack to the police but was attacked again by the AL people after leaving the police station (“2015 Attack”).

8.  The Applicant claimed that he made several reports to the police but no action was taken. He claimed that the Bangladeshi police were controlled by the AL and would not help him.

9.  After the 2015 Attack, the Applicant fled to Haragach in Pangpur, which was about 400 km away from his home. He stayed there peacefully for about two weeks before fleeing to India on 2 January 2016. He returned to Bangladesh on 6 January 2016 because he had no means to support himself in India.

10.  After returning from India, he lived in Dhaka but he sometimes went back to his home village. He was attacked on a day in mid-2016 while sleeping in his home. About 7 or 8 AL people attacked him with a hammer and he lost consciousness from the attack. The AL people warned him that he would be killed if he did not leave the village within a week.

11.  The Applicant fled to Gazipur, then to Dhaka, after the attack. He was again attacked by 7 to 8 AL people in 2017 in Dhaka but he managed to escape.

12.  He learnt from his wife that the police kept visiting his home because of an outstanding warrant on the 2014 Case. The Applicant believed that the warrant was issued because he failed to report to the police for the 2014 Case.

13.  He left Bangladesh via the official channel on 11 November 2017 to Mainland China. He entered Hong Kong illegally on 2 December 2017. He surrendered to the Immigration Department on 4 December 2017 and lodged the Claim by written representation dated 21 June 2018.

14.  The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”):

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“torture risk”);

(b)  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”);

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

(d)  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”).

15.  By the DOI Decision, the Director refused the Claim. 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.

16.  On 2 September 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

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

18.  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.”

19.  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

20.  In the Form 86, the Applicant did not put forward any ground for his intended judicial review.

21.  In the Supporting Affirmation, the Applicant repeated his claims and complained that the Board did not visit Bangladesh to investigate the Claim and the Adjudicator of the Board “was like [his] opposition leader, people like him cannot be a [neutral] judge”.

22.  There is no legal or legislative basis to require the Board to visit the risk states to investigate claims. In fact, it is neither practicable nor reasonable to require the Board to do so before determining the cases before it. Such ground for judicial review is not reasonably arguable.

23.  The Applicant testified at the hearing before the Board. In §§64-103 of the Board’s Decision. The Board made detailed analysis of the Applicant’s evidence given at the hearing before the Board to form the view that the Applicant was not a witness of truth and that he had fabricated his claims in relation to his involvement with the Jamaat. (§109 of the Board’s Decision)

24.  For reasons set out in §§110-127 of the Board’s Decision, the Board rejected the Applicant’s claims, both individually and cumulatively, in their entirety. (§128 of the Board’s Decision).

25.  The Board found that neither the Applicant nor his brother had ever been members of, or in any way associated with the Jamaat. They were also not perceived by others to be members or supporters of the Jamaat. The Applicant was never threatened or assaulted by the AL people. He was not subjected to extortion demands and did not pay money to the AL people or to anybody else. He was never assaulted and was never hospitalized due to an assault. He did not have to close down the Shop and go on run to escape harm from the AL people. He had never been of adverse interest to the AL or to any of its individual members.

26.  There had never been a case against the Applicant accusing him of a crime. He was never required to go to court for a criminal case. There had never been warrant for his arrest. He was of no adverse interest to the Bangladeshi authorities. He could return to Bangladesh without fearing any type of harm from anyone.

27.  As pointed out in the Nupur Mst case (supra), assessment of evidence and risk of harm 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.

28.  In disputing the Board's assessment on evidence, credibility and risk of harm, 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.

29.  The Applicant attended the court hearing on 20 March 2025. At the court hearing, he was unable to identify any error of law, procedure unfairness or irrationality in the Board’s Decision.

30.  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 under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

31.  The Board found that there were no substantial grounds for believing that the Applicant would be in danger of being subject to the torture risk or the BOR 3 risk if he returned to Bangladesh. The Board found that the Applicant did not have a well-founded fear of persecution on any Refugees Convention basis. The Board also found that there was not a real risk that the Applicant would arbitrarily be deprived of life, have the death penalty imposed on him or otherwise be deprived of his rights under BOR 2.

32.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection. These were 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 for the Claim. 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

33.  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 Claim, 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

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