Rahman Md Sofiar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 2552/2024[2025] HKCFI 979

Court

High Court CFI

Date12 Mar 2025

Judge—

Case Document

100%Judiciary

HCAL 2552/2024

[2025] HKCFI 979

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2552 of 2024

BETWEEN
	Rahman Md Sofiar	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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;

Order by Deputy High Court Judge Reuden Lai:

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.This is an application by Mr Rahman Md Sofiar (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 10 July 2024 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 27 March 2024 (“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 10 March 1983 in Jhenaidah, Bangladesh. He had received 8 years of formal education and had 14 years of working experience in different trades.

3.The Applicant claimed that he was a member of the Bangladesh Nationalist Party (“BNP”). In about 2009, he was appointed the Organizing Secretary of the BNP in Jhenaidah. He claimed that he would be killed or harmed by supporters of the Awami League (“AL”) because he supported the BNP.

4.The Applicant claimed that the supporters of the AL in his home village (“AL Supporters”) attacked or harassed him in different incidents occurring between 2013 and 2023. He also claimed that the Bangladeshi police harassed him between 2015 and 2017 and tried to frame him with a false charge in late 2017.

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

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

(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”) (“persecution risk”).

6.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.

7.On 19 December 2024, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the DOI Decision and the Board’s Decision. The Applicant also filed his supporting affirmation on 19 December 2024 (“Supporting Affirmation”). In the Form 86, the Applicant named the Board and the Director as the proposed respondents.

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.The Applicant filed the Form 86 on 19 December 2024.

12.Order 53 rule 4(1) of the Rules of the High Court provides that:

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

13.The Board’s Decision was issued on 10 July 2024. As such, the Applicant should have filed the Form 86 latest on 10 October 2024. The Form 86 was filed on 19 December 2024. It was late.

14.The Applicant was late for more than 2 months in filing the Form 86. This is a substantial delay. No explanation has been provided in the Form 86 or the Supporting Affirmation for the late filing of the Form 86. The Applicant has not made any application for time extension to file the Form 86.

15.The Applicant attended the court hearing of 20 February 2025 (“Court Hearing”) and said that he had never received the Board’s Decision and he was detained by the Immigration Department from 4 December 2024 to 6 January 2025. Thus, he was unable to apply for judicial review within time. He further said that he knew nothing about the Hong Kong court procedure.

16.The Applicant said that he had not received the Board’s Decision. This cannot be true as a copy of the Board Decision had been exhibited to the Supporting Affirmation which was affirmed by the Applicant on 11 December 2024 before a solicitor at Castle Peak Bay Immigration Detention Centre (“CIC”).

17.The Applicant said that he was assisted by the Duty Lawyer Service (“DLS”) at the screening interview (“Interview”) with the Immigration Officer and he engaged private lawyers to assist him after that although his lawyers did not represent him at the hearing before the Board. The Applicant said that the Form 86 and the Supporting Affirmation were prepared by his lawyers for him to sign at CIC.

18.The Applicant was assisted by lawyers for this judicial review application. Documents for his case (including the Board’s Decision exhibited to the Supporting Affirmation) had to be provided by him to his solicitors and his solicitors should have advised him on judicial review procedure.

19.The fact that he was detained by the Immigration Department from 4 December 2024 to 6 January 2025 is no explanation for his failure to file the Form 86 within time as the statutory time limit for him to file the Form 86 had long expired on 10 October 2024.

20.The Applicant’s aforesaid explanation is far from satisfactory.

21.For the sake of good order and completeness, I shall also consider the merits of the Applicant’s application before deciding on how to dispose of the matter.

22.In the Form 86, the Applicant named the Director as one of the proposed respondents and referred to the DOI Decision as one of the decisions subjected to his intended judicial review application.

23.As the Applicant had already utilized the channel of appealing the DOI Decision to the Board and the Board had treated the appeal/petition as a de novo hearing or rehearing, judicial review of the DOI Decision will not be allowed unless there were exceptional circumstances which I found none in this case. (Re: Saqlain Muhammad [2018] HKCFI 409 at §6) The Applicant may not have the second bite of the cherry to challenge the DOI Decision by way of judicial review. I dismiss his application for leave for judicial review of the DOI Decision.

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

25.In the Supporting Affirmation, the Applicant exhibiting a statement (“Statement”) claiming that:

(1)  The Director and the Board reached their decisions wrongly and their decisions were unreasonable and unfair. The Board failed to give him sufficient time and chance to arrange relevant evidence for the Claim and the Appeal;

(2)  The Director failed to give proper weight to the presence of state acquiescence and to country of origin information (“COI”) supporting the Applicant’s case that the police in his country would not be able to protect him;

(3)  This was a clean case of unfair attitude shown by the Director. The corruption and incompetency of the administration in his country is still a very serious problem. The Director failed to attain the high standard of fairness required by the Wednesbury test.

26.The Applicant complained that the Board failed to give him sufficient time and chance to arrange relevant evidence for the Claim and the Appeal.

27.The Applicant came to Hong Kong on 2 November 2023 and made the Claim on 18 November 2023. He attended the Interview on 28 February 2024 when he was assisted by the DLS. He had more than 3 months to prepare his evidence for the Interview. In fact, he had submitted some documents to the Immigration officer at the Interview and the documents were duly considered by the Director. (See §§7.50-7.51 and 41of the DOI Decision)

28.From the Interview to the hearing before the Board on 14 June 2024 (“Board Hearing”), the Applicant had another 3.5 months to prepare evidence for the Appeal. If he had further evidence to submit for the Claim or the Appeal, he had ample time to arrange for the same. If for some reasons he needed more time to arrange for further evidence, he could raise his request to the Board at the Board Hearing. The Applicant confirmed at the Court Hearing that he only told the Board at the Board Hearing that it was still dangerous for him to return to his country. He did not request for further time to submit documents.

29.The Applicant left Bangladesh on 11 October 2023 to seek protection. From 11 October 2023 to 14 June 2024 (Board Hearing date), the Applicant had more than 8 months to prepare evidence for the Claim and the Appeal. He had had ample time to arrange for his evidence. If he still needed more time, he should have made request to the Board for further time at the Board Hearing. The Applicant made no such request at the Board Hearing. I further note that the Applicant produced no other supporting evidence to the Supporting Affirmation which was affirmed on 11 December 2024, i.e. more than 5 months after the Board Hearing.

30.In such circumstances, I do not find this ground reasonable arguable.

31.Other grounds raised in the Statement were complaints against the Director. As the hearing of the Appeal before the Board was de novo, error (if any) made by the Director in the DOI Decision will not constitute grounds for judicial review of the Board’s Decision. I have also dismissed in above the Applicant’s application for leave for judicial review of the DOI Decision. These grounds are also not reasonably arguable.

32.The Board noted that the attacks on the Applicant were infrequent and the injuries suffered by him were not serious. The Board was of the view that the threats to kill the Applicant were never meant to be serious. They were just empty threats with the purpose to pressurize the Applicant to quit the BNP. The case had nothing to do with the reasons referred to in Article 33 of the Refugees Convention. The Board also found that state protection was available to the Applicant and internal relocation would be viable.

33.As pointed out in the Nupur Mst (supra) case, 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.

34.No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way the Board’s Decision was unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

35.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; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

36.In §§40-59 of the Board’s Decision, the Board considered the Claim under each of the applicable ground under the USM. The Board found that there were no substantial grounds to believe that the Applicant faced a real risk of being subjected to the torture risk or the BOR 3 risk if he returned to Bangladesh. The Board did not accept that the Applicant had a well-founded fear of the persecution risk. The Board also found that there were no grounds to believe that the Applicant faced the BOR 2 risk.

37.It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection. 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

38.The Form 86 was filed out of time without leave of the court nor good explanation. 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.

Dated the 12^th day of March 2025.

(Allen LEE)
for Registrar, High Court

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

Notes for the Applicants: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 12/3/2025 Rahman Md Sofiar Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 12/3/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 23387 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 310/24 (Formerly RBCZ 5000250/24) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)