Md Noyan Uddin Zoyaddar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1860/2019 on BabelCite. This High Court CFI judgment was delivered on 18 March 2025.
1. This is an application by Mr Md Noyan Uddin Zoyaddar (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 20 June 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 28 December 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“NRC”).
Cites 9 cases
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HCAL 1860/2019 [2025] HKCFI 1105 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1860 of 2019
Application for Leave to Apply for Judicial Review Following:
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 Md Noyan Uddin Zoyaddar (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 20 June 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 28 December 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“NRC”). Background of the Applicant and the Claim 2.The Applicant is a Bangladeshi. He was born on 1 January 1986 in District Kushtia, Bangladesh. He received 8 years of education. He operated his own business from 2002 to 2004 and from 2007 to 2008. From 2004/2005 to 2007, he worked as a knitting operator in Kushtia. 3.The Applicant claimed that he was a supporter of the political party Bangladesh Nationalist Party(“BNP”) since 1997 but he did not hold any office in the party. 4.In around August 2008, the Applicant borrowed 400,000 Taka (“Loan”) from 3 creditors (“Creditors”) with a weekly interest of 4,000 Taka. The Creditors were rich, powerful and influential. They were active members of the BNP and were on very good terms with the police. The Applicant was told by his mother in 2016 that the Creditors had switched allegiance to Awami League (“AL”), another political party which had became the ruling party in Bangladesh. 5.The Applicant made 4 payments of weekly interest to the Creditors but was unable to make further payments due to failure of his business. When the Creditors chased the Applicant for repayment, the Applicant kept asking for more time to do so. 6.The Creditors attacked the Applicant on 4 occasions injuring the Applicant. They also threatened to kill him if he still did not repay the Loan. The Applicant had to seek medical treatment for the injuries. 7.On another occasion, the Applicant was assaulted by the policemen. He was subsequently charged for robbery and attempted murder. He attended trial and was released on bail. The Applicant said that these were false charges against him and the victim of these false charges was the paternal uncle of one of the Creditors. The Applicant said that the Creditors framed him to punish him for failing to settle the Loan. 8.In order to avoid the Creditor, the Applicant went to Dhaka at the beginning of 2009 and lived in different places. He tried to leave Bangladesh in February 2009 to Vietnam but was arrested by police officer and detained at the airport police station for an hour. The Applicant was told that his visa for Vietnam was false. 9.On 2 March 2009, the Applicant eventually left Bangladesh for Vietnam. From Vietnam, he entered mainland China without a visa. He came to Hong Kong illegally in April 2009 from the Mainland. 10.The Applicant said that his family told him that after he came to Hong Kong, the Creditors still came to his family home to look for him and threatened his mother that they would kill him if they found him in Hong Kong. 11.The Applicant claimed that the Creditors would harm or kill him if he returned to Bangladesh because of the outstanding Loan and the police would arrest him for the false charges against him. 12.The Applicant lodged a torture claim on 18 April 2009 under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT Claim”). The CAT Claim was rejected by the Director on 19 November 2013. 13.On 25 November 2013, the Applicant lodged the NRC. The Director had considered the NRC on all remaining applicable grounds (other than the CAT Claim) under the unified screening mechanism (“USM”), namely:
14.By the DOI Decision, the Director refused the NRC. The Applicant later filed an appeal/petition to the Board (the “Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal. 15.On 4 July 2019, the Applicant filed the Form 86 herein (the “Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant named the Board as proposed respondent and the Director as interested party in the Form 86. The Applicant also filed his supporting affirmation on the same day (the “Supporting Affirmation”). Legal principles applicable to judicial review 16.In a judicial review, the court does not step into the shoes of the decision makers. 17.In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:
18.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 19.The Applicant failed to attend the court hearing scheduled for 6 February 2025 (“Court Hearing”) despite a notice of hearing dated 13 January 2025 having been sent to him and not being returned. In fact, the Applicant had also failed to respond to another letter dated 5 September 2024 sent by the court to him previously inviting him to send submissions to the court. As such, I decided to proceed to deal with this application according to papers already placed before the court. 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 claim and stated that the Board asked him some questions at the Appeal hearing which only lasted for about 2 hours. He complained that the Board had refused the Appeal without proper investigation. He raised the query that: “He [i.e. the Adjudicator] only asked some question [sic], and only two hours he sit with me, is that enough to refused [sic] my claim?” (pp 4-5 of the Supporting Affirmation) 22.He exhibited the Board’s Decision and the hearing bundle for the Appeal hearing to the Supporting Affirmation. 23.At the Appeal hearing, the Board had considered all evidence previously provided by the Applicant to the Director and would only ask questions on matters causing concerns to the Board. The fact that the Appeal hearing lasted for 2 hours is no ground to contend that the Board had not properly investigated the Claim. The Board had analyzed the Claim in detail in the 102 paragraphs Board’s Decision. In §9 of the Board’s Decision, the Board recorded that: “At the conclusion of the Hearing [the Applicant] was asked if he had anything further to add, or if he had any questions. The [Applicant] said he had not.” The Applicant had the opportunity to present all his evidence to the Board and the Board had obtained all evidence which the Board required for determining the Appeal at the Appeal hearing. It is not reasonably arguable that the Board had not properly investigated the Claim. 24.The Applicant testified at the Appeal hearing before the Board. He claimed that he would be harmed by the Creditors because of the unpaid Loan; arrested and prosecuted in relation to the false charges against him; and harmed by the AL because of his support for the BNP. 25.The Board accepted that the Applicant had borrowed the Loan from the Creditors and failed to repay the same and the Creditors had sought repayment from him. 26.However, as to the various incidents involving the Creditors, the Board found that the Applicant was frequently vague and evasive, or inconsistent with previous versions of events. (§§60-64 of the Board’s Decision) The Board found that the Applicant had failed to establish by reliable evidence that he was beaten by the Creditors, or that they threatened to kill him. 27.The Board also found that the Applicant’s evidence in respect of the alleged false charges against him was inconsistent and unconvincing. (§§67-68 of the Board’s Decision) The Board found that the Applicant had failed to establish that any criminal proceedings were taken against him. 28.For reasons set out in §§70-75 of the Board’s Decision, the Board did not consider that there was any credible evidence that the Applicant was at risk of harm because of his support for the BNP. 29.For reasons set out in §§76-77 of the Board’s Decision, the Board found that the Applicant had failed to establish by reliable evidence that he was detained or assaulted by the Bangladeshi police or that the Creditors played any part in the alleged actions of the police. 30.The Board found that there was no credible evidence that the Bangladeshi government, police or any other authorities were involved or acquiesced in the conduct of the Creditors alleged by the Applicant. Reasonable state protection would be available to the Applicant if he returned to Bangladesh and internal relocation would also be viable. (See §§92-100 of the Board’s Decision) 31.As pointed out in the Nupur Mst (supra) case, assessment of evidence, country of origin information 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. 32.In disputing the findings on 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. 33.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. 34.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 under the USM (other than the CAT Claim) for seeking non‑refoulement protection; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness. 35.In §§56-91 of the Board’s Decision, the Board considered the NRC under the persecution risk, the BOR 2 risk and the BOR 3 risk. The Board found that there were no substantial grounds for believing that the Applicant would face a real risk of persecution or be subjected to the BOR 3 risk if he returned to Bangladesh. The Board also found that there was no evidence to suggest that the Applicant’s life would face the BOR 2 risk if he were refouled to Bangladesh. 36.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 for the NRC. 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 37.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 NRC, 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 18th 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
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Cases cited in this judgment
Further hearings and rulings under HCAL 1860/2019