Shohag Mehedi Hasan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2365/2019

[2025] HKCFI 1097

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2365 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;

Order by Deputy High Court Judge To:

1.   Leave to amend the Form 86 be granted; and

2.   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 15 August 2019 for leave to apply for judicial review (the “leave application”) of a decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”).  He did not identify the decision sought to be reviewed, but annexed a copy of the first four pages of a 27-page decision of the Board dated 11 July 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 28 September 2018 (the “Notice”), refusing his application for non‑refoulement protection.  The inference is therefore that this is the decision which the Applicant wished to judicially review.  Leave is hence given to amend his Form 86 to give effect to that intention of his.

2.The Applicant had requested an oral hearing.  His address he stated in his Form 86 in August 2019 was at Battery Street.  On 7 November 2024, the Department of Justice informed the Court that the Applicant was being detained at Castle Peak Bay Immigration Centre (“CIC”) and requested priority hearing.  A hearing on 8 January 2025 was scheduled for him with notice of hearing sent to him care of CIC.  But the notice was returned undelivered with a note that he had been discharged.  Neither the Department of Justice nor the Immigration Department had informed the Court of the discharge. 

3.After obtaining his up-to-date address at Canton Road from the Immigration Department, another oral hearing on 20 January 2025 was scheduled for him and the Notice of hearing was sent to him by post to that address on 7 January 2025.  Prior to the hearing, a court staff attempted to contact him by telephone to remind him of the oral hearing.  She was informed by person answering the call that the Applicant was residing with his father and was not at that address for the time being but would return later.  The Applicant, however, did not attend the hearing.

4.A third hearing was then scheduled for him on 5 March 2025 with Notice of Hearing sent to him by post on 28 January 2025.  The notice has not been returned through the course of mail.  The Applicant never informed the court of any change of address.  There is nothing to suggest that he had not received the notice or had moved.    On the day before the hearing, a court staff attempted to contact him by telephone to remind him of the hearing, but the call was not answered.  The Court is satisfied that the notice of hearing had been duly served on the Applicant and the Court had tried its best endeavour to bring the hearing to his notice.  However, 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 considers that the leave application may be justly determined on paper without an oral hearing.

Background

5.The Applicant is a Bangladeshi national.  He entered Hong Kong illegally on 15 December 2015 and surrendered to the Immigration Department on 22 December 2015.  On 24 August 2016, he lodged a non-refoulement claim.  In due course, his claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk^[1]; BOR 3 Risk^[2]; Persecution Risk^[3]; and BOR 2 Risk^[4]. His application was rejected by the Director’s Notice.  His appeal against the Notice was dismissed by the Board’s Decision.  He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

6.The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (the “NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, he claims his life will be in danger if returned to Bangladesh because he was involved in student politics against the Awami League (“AL”).

7.The Applicant, now aged 32, was born and raised in Dhaka, Bangladesh.  He is married.  His mother, brother, wife and daughter are living in Bangladesh.  He received formal education for seventeen years. and studied a bachelor degree course in Business Administration in Malaysia from 2012 to 2015.    

8.While studying at Daffodil College, he was a supporter of the Bangladesh Nationalist Party (“BNP”) and the BNP organising secretary at Daffodil College.  One day in February 2010, while he and his friends were at a restaurant, Anwar, an AL member, called the police to report some criminal activities inside the restaurant.  The Rapid Action Battalion (“RAB”) arrived and forced the Applicant and his friends to get into the police van.  When the Applicant refused, one of the police officers slapped him and his friends, and a fight ensued.  The police started shooting. The Applicant’s left leg was injured by a bullet.  He was taken to the hospital by the RAB, where he was hospitalised for three days.  After his discharge from the hospital, he was taken to the police station.

9.He was later charged with possession of arms and remanded in the prison for 22 months waiting for a trial date to be fixed.  As he was a student, the court granted him a conditional bail to sit the examinations.  He returned to college.  However, Anwar and the police still kept an eye on him and all student members of the BNP so that they could not do anything in the local community.

10.One evening in February 2012, while he and his friends were preparing to attend a BNP meeting at the restaurant, Anwar informed the police and RAB that they were doing something dangerous.  The police and RAB arrived and arrested him and his friends.  They were eventually taken to the police station.  A case was laid against him but he managed to obtain a bail with the help of his lawyer.   

11.After that, he went to study in Malaysia from 2012 to 2015, during which time he returned to Bangladesh three times. He said that in 2015, he was stopped by the Bangladesh immigration at Benepol Land Port when re-entering Bangladesh from India.  He was told that there had been some complaints against him from Dhaka.  He said his lawyer advised him that if he was found guilty of the offence of possession of arms, he would have to serve ten years’ imprisonment.  Out of fear, he came to Hong Kong.  

12.He does not believe that the Bangladeshi authorities and police could protect him because they are corrupt.  He does not believe internal relocation would be viable, as all of his family properties are in his home town, and that is where his roots are.

The finding of the Board

13.On the basis of the country of origin information (“COI”), the Board accepted there are two main political parties in Bangladesh at the material time, the BNP and the ruling AL.  It accepted there is strong personal antipathy between the parties as well as between the AL and other political parties, and Bangladesh continued a harsh crackdown to suppress those who disagree or are critical of the AL.  These findings are supportive of the political atmosphere in Bangladesh as asserted by the Applicant.

14.The Board studied the legal provisions relating to the offence of possession of arms, in particular section 6 of the Arms Act, 1878 and the law of bail.  The penalty prescribed under section 6a are life imprisonment or any “other rigorous imprisonment” but not less than seven years and that bail is not granted where there is any risk of absconding.

15.Against the backdrop of the COI and the law relating to possession of arms, the Board found the Applicant’s claim that he was charged with a section 6a offence and given bail which enabled him to travel overseas to undertake studies and take up employment in Malaysia and travel in and out of Bangladesh between 2010 and 2015  unlikely. 

16.According to the COI, Daffodil College is a relatively prestigious international school.  Its website lists a number of student groups and organisations, but does not include any political student groups at all.  On this premise, the Board did not accept that any persons involved in opposition political groups would have been permitted to continue at the college.  It therefore found the Applicant’s evidence regarding his involvement in such a political student groups to an extent that attracted the attention of AL incredible.  Furthermore, when asked, the Applicant had considerable difficulties providing details of his involvement and the information in the group’s publicity leaflets.  Hence, the Board formed a strong impression that he was not speaking from his personal experience.

17.According to his NCF, following his arrest in February 2010, the Applicant was held in custody for 22 months.  This is inconsistent with his claim that he was employed by Asia Television and various other companies between 2010 and 2012.  When confronted with the inconsistency, he altered his evidence and claimed he was held in custody for nine months only and released on 22 November 2011.  This is also inconsistent with his claim that he commenced his studies in Malaysia in mid to late 2012. 

18.The Board also found his evidence about his involvement with the Chatra Dal (“JCD”) which is the student wing of the BNP unconvincing and inconsistent with his claims to have been the publicity/organising secretary for the JCD at his college, and to have been involved with the JCD in his local area.  He was only able to give a very basic description of his role and activities as the publicity secretary and continually reverted to generalisations when asked to provide details of his involvement. 

19.The Board considered the documents produced by the Applicant, including police charge sheets and witness statements regarding the charges he claimed he was facing.  While the Applicant claimed he was in a restaurant with his friends in the evening when the RAB raided it and claimed to have produced a gun from his bag, all the documents indicate that the incident occurred at 14:30 hours on the fourth floor of a shopping centre opposite a business called Tania Enterprise.  The Applicant explained the difference in timing and location by saying that the police fabricated the documents and some of the witnesses were actually deceased.  The Board found there was no reason for the police to fabricate such details and found it more likely than not that the Applicant’s documents were fabricated and he got the details wrong.  In coming to that conclusion, the Board was assisted by the COI showing that forged documents are readily available and can be purchased in Bangladesh.

20.In conclusion, the Board found the Applicant was not a truthful witness.  It did not accept he was ever involved with the BNP, the JCD, either in his college or in his local area.  It did not accept he attracted the adverse attention of the AL or its associated student group or others due to his involvement in the JCD, or that he was involved in a raid by the RAB during which he was shot and a gun planted in his bag, resulting in false charges laid against him.  It did not accept he had served any period of time in prison, or was released on bail, breached bail conditions or an arrest warrant had been issued against him.  It did not accept that the Applicant had any involvement in the election or resulting violence or that he will be involved with the JCD or any political parties upon his return to Bangladesh.

21.It was not satisfied that the Applicant will be arrested, jailed or subjected to any harm from the RAB, the police or any other Bangladeshi authorities upon his return to Bangladesh.  It did not accept he has an arrest warrant issued against him or that he has an adverse political profile or that he will be charged or convicted of any offence relating to the possession of arms or similar offences upon his return to Bangladesh.

22.Hence, the Board was not satisfied that there are substantial or strong grounds or a real chance, or a real risk for believing that he will suffer harm amounting to torture, cruel, inhuman, degrading treatment or punishment, a risk to his life or persecution upon his return to Bangladesh. Applying the law applicable to non‑refoulement protection, it found the Applicant is not entitled to protection under any of the applicable grounds under the USM.  Hence, it dismissed his appeal against the decision of the Director in his Notice.

Legal principles applicable to judicial review

23.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

24.The Applicant did not advance any grounds for review in his Form 86.  In his supporting affirmation, he said he had mentioned to the Board that he had two passports, and he changed his name and age by notary.  He also stated that he provided all the supporting documents to the Immigration Department and the Board, but they did not pay attention to his case.  He annexed an additional 34-page document to support his claim.  The Board in fact accepted he had two passports lawfully during a transitional period.  He has not raised any specific grounds of application.

25.The Applicant had written two letters to Court in November and December 2024.  He claimed he was not currently stable or mentally fit and wanted to seek legal advice.  He asked the Court to postpone the processing of his leave application.  His claim is not supported by medical evidence.  Four months had lapsed.  If he was serious in seeking legal advice, he would have obtained it already.  His condition could have improved or deteriorated.  He did not turn up at the oral hearing to advance his request.  His letters seem to have been written by someone with a sound mind.  He was able to understand the letter of the Department of Justice that it had applied for an early disposal of his leave application and to resist that application.  The Court could not take his claims into account.

Overall scrutiny

26.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 applicable to non-refoulement protection 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 analysed the evidence properly, tested it against common sense, inherent probability and the COI.  It found him incredible, that he had fabricated his claim and that the documents he produced were not genuine.  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 finding was made as result of error of law or 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

27.For the above reasons, leave is granted to amend the Form 86, but the leave application as amended is refused

Dated the 18^th day of March 2025

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] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap. 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap. 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383

[5] [2018] HKCA 524 at [14(1)]