Hossain Md Zakir v. Torture Claims Appeal Board

Case No.HCAL 3894/2019[2025] HKCFI 1158

Court

High Court CFI

Date26 Mar 2025

Judge—

Case Document

100%Judiciary

HCAL 3894/2019

[2025] HKCFI 1158

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3894 OF 2019

BETWEEN
	Hossain Md Zakir	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the applicant or counsel in open court;

Order by Deputy High Court Judge Michael WONG:

1. The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

2. The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated 31 December 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 23 December 2019 (“the Board's Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003894_2019_files/the_Board's_Decision.pdf

2.The Board rejected the applicant’s non-refoulement claim as it was not substantiated on all the applicable grounds under the Unified Screening Mechanism (“the USM”), and confirmed the decision of the Director of Immigration (“the Director”) dated 16 January 2019.

The applicant’s case

3.The applicant’s case (as detailed in the Board’s Decision) can be briefly summarised as follows:-

(1)  The applicant is a male national of Bangladesh from Dhaka Division. In 2004, he joined Sromik Dhara (“SD”), the workers wing of the Bikalpa Dhara Party (“BDP”), as an ordinary member. He was later promoted to the position of vice-president of SD for Dhaka city.

(2)  In 2008, the Awami League (“AL”) came to power in Bangladesh. AL had a grudge against BDP. The chairman of Sromik League (“SL”), which is the worker wing of AL, had threatened the applicant and demanded money from him. The applicant did not pay the chairman.

(3)  At the end of 2009, the applicant was assaulted by the chairman, the president and some members of SL, and he was asked to quit his position as vice-president of SD and stop working for the party. The applicant refused to quit. At the end of 2010, the applicant was further assaulted by activists of SL and members of AL.

(4)  The applicant made complaints about the two assaults to two different police stations and the National Human Rights Commission, but received no assistance.

(5)  Fearing further harm, the applicant moved around from place to place elsewhere in Dhaka and then left Bangladesh in 2012. He flew to Kunming and overstayed in China for three years.

(6)  The applicant arrived in Hong Kong illegally via boat in June 2015 and surrendered himself to the Immigration Department in July 2015.

(7)  On 29 October 2015, the applicant lodged a claim for non-refoulement protection to the Immigration Department. The Director rejected his claim on 16 January 2019. Then the applicant filed an appeal/petition against that decision to the Board on 28 January 2019.

Grounds for judicial review

4.The applicant did not advance any ground for his intended judicial review in Form 86 nor in his supporting affirmation dated 31 December 2019. He simply attached a copy of the Board’s Decision and the decision of the Director to his supporting affirmation, and stated that the affirmation was for leave to apply for judicial review against the decision of the adjudicator of the Torture Claims Appeal Board as well as the Director.

Withdrawal at the oral hearing

5.The applicant requested for an oral hearing of the Leave Application and his case was heard on 25 February 2025. However, the applicant applied for withdrawal of the Leave Application at the hearing. The reason he gave for the withdrawal application was that as his case would finish soon and the immigration was going to detain him, he would like to return to his country without being detained.

6.There is no evidence to show that the applicant made the above withdrawal application other than out of his own volition. With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application, and he did not advance any ground for the Leave Application at the hearing.

7.The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

8.Thus, it is right for this court to deal with the Leave Application instead of granting leave to the applicant to withdraw the Leave Application. It is just not right to leave the action at large by granting leave to withdraw to the applicant.

Discussion

9.First of all, it is wrong for the applicant to indicate in his supporting affirmation that the Director’s decision is included in the Leave Application. As held in Re Moshsin Ali [2018] HKCA 549, the Director’s decision is not a decision that is susceptible to judicial review once an appeal to the Board is pursued by a claimant. Thus, this court will only consider the Leave Application regarding the Board’s Decision.

10.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 [2018] HKCA 524).

11.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 a reasonably arguable claim which enjoyed realistic prospects of success.

12.Since the applicant did not advance any ground for the intended judicial review, this court will only proceed to examine and scrutinize the Board’s Decision for any error of law, procedural unfairness and irregularities.

13.In assessing the appeal/petition by the applicant, the Board held a hearing on 27 June 2019 assisted by an interpreter. The applicant was present and was given the chance to present his case and grounds of appeal to the Board in person. The Board carefully assessed the applicant’s claim on those matters asserted by him. The Board accepted most of the applicant’s evidence about the events leading to his flee from Bangladesh and that the applicant had a genuine subjective fear of harm from supporters of SL/AL if he were to be refouled to Bangladesh.

14.However, based on the then most updated country of origin information (“COI’) and the applicant’s own evidence, the Board found that there had been a rapprochement between BDP and AL in recent years and particularly at the 2018 general election. Due to the changed political environment in Bangladesh, together with the passage of time and the fact that the applicant is no longer a supporter of BDP, there was no longer any real risk that the applicant would be targeted because of his former support for BDP.

15.The Board rejected his claims that SL/AL supporters had been looking for him and threatening to harm his family since he left Bangladesh. The applicant in fact failed to explain how AL supporters in the hometown of his in-laws, where his family stayed, would have any knowledge of him, particularly when he just held a low-level position in a small political party.

16.The Board also examined in details the extensive COI with the applicant. The applicant expressed his fear of general violence as well as police and official corruption in Bangladesh. The Board found that the applicant was never harmed by the police in the past and he failed to identify any real or personal risk to him from the police or general violence.

17.The Board also re-assessed the applicant’s claim on all the applicable grounds under the USM, namely:-

(a)  risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol;

(b)  risk of torture under Part VIIC of the Immigration Ordinance;

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance; and

(d)  risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance.

18.After due consideration of the law and the evidence as presented by the applicant, the Board found that the applicant’s feared ill-treatment, risk of right to life, risk of torture and risk of persecution are remote or speculative. The applicant would not face any real risk if refouled. Hence, the Board concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.

19.The Board also concluded that it is unnecessary to make findings in relation to internal relocation after concluding from all the evidence that the applicant does not face a real risk on all the applicable grounds under the USM.

20.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision.

21.The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. Thus, the intended judicial review has no realistic prospects of success at all, and the Leave Application must be dismissed.

Conclusion

22.For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed.

Dated the 26^th day of March 2025

( Alfred Chan )
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 applicant: If leave has been granted, the applicant or his 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/Handed to the applicant/the applicant’s solicitors on: 26/3/2025 Applicant’s ref. no: Nil		Sent/Handed 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: 26/3/2025 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 15425/19/1/298/B1948 Director of Immigration Putative interested party’s ref. no.: QA T/C 4870/18 (Formerly RBCZ 14290/15) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)