Barua Saju Alias Choudhary Animesh Bimol v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2979/2019

[2025] HKCFI 1714

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2979 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;

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 10 October 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 24 July 2019. He named both Director and the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) as the proposed respondents. Enquiries revealed that the Director had not made any decision dated 24 July 2019 in respect of the Applicant, but the Board had in dismissing the Applicant’s appeal against the Director’s decision in his notice of decision dated 22 May 2019 (the “Notice”). It is thus obvious that the Applicant’s intention is to seek leave to apply for judicial review of the Board’s decision dated 24 July 2019 (the “Decision”) dismissing his appeal against the Director’s decision in the Notice. To give effect to his intention, leave is granted to amend his Form 86 to this effect.

Background

2.The Applicant is a Bangladeshi national, now aged 31. He entered Hong Kong on 24 January 2019 on the strength of an Indian passport under the identity of Choudhary as a visitor. He surrendered to the Immigration Department on 13 February 2019 and disclosed his true identity. He lodged an application for non-refoulement protection by written signification dated 14 February 2019. 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]; and 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

3.The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims that if returned to Bangladesh, he will be ill-treated or even killed by the Muslims for being a Buddhist due to discrimination; and by members of the Awami League political party (“AL”) for refusing to join the party.

4.The Applicant had around 8 years of education and 9 years working experience as a tailor. In Bangladesh, nearly 90% of the population is Muslim, while the rest consists of other religious minorities, including Buddhists. He was born into a Buddhist family. As he grew up, he experienced various kinds of discrimination. Muslims interrupted and stopped Buddhists celebrating their festival, attacked them, instigated their neighbours against them etc.

5.On 29 September 2012, his house was burned down in the middle of the night. He and his family escaped unharmed. His parents and siblings moved to stay with his grandparents in another village, while he stayed behind living with his paternal uncle, so that he could participate in the Bangladesh Nationalist Party (“BNP”) of which he was a member.

6.On 25 September 2015, he was appointed as the general secretary of the Chatra Dal (the student wing of the BNP). One day, his counterpart Monowar Hossain (“Monowar”) and other members from the AL (“his enemies”) approached him and asked him to join them. When he refused, his enemies threatened to beat him up if they saw him join BNP’s rallies and meetings. About two to three days later, the Applicant was attacked by a few of his enemies in the street. He suffered minor injuries. After that he went to Chittagong where he worked as a tailor. He did not report the attack to the police as the AL was the ruling party and he thought the police would not offer him assistance.

7.A year later, he moved to Khagrachhari after he was alerted that his enemies had found out where he was. Towards the end of 2017, he moved to Pune in India for the same reason. There, he was approached by a man who offered to help him after hearing his story. The man found him a place to stay. He paid the man 10,000 Indian Rupees. Fifteen days later, the man returned. The man gave him an Indian passport and took away his Bangladeshi passport to enable him to move around India and elsewhere. He stayed in Pune and worked for a year as a tailor. After learning about availability of protection in Hong Kong, he came to Hong Kong in January 2019 to seek protection.

The finding of the Board

8.The Board acceded to the Applicant’s request to determine his appeal without an oral hearing. It found his story about the man who helped him incredible. It considered it inconceivable that all the events in Pune happened, the exchange of passports, and his payment of 10,000 Indian Rupees to that man, etc. It held that once the veracity of this area of the case is in doubt, the general veracity of the case is also adversely affected. It disbelieved him. On that basis, it dismissed his claim. This is the Board’s primary decision which is founded on the basis that the Applicant is disbelieved.

9.However, the Board went on to assess his risk of harm on the basis of his case as he asserted. It found the injuries suffered by the Applicant during the first attack were not serious and hence drew the inference that his enemies had no intention to kill him. From the fact that he was able to avoid his enemies when he was hiding in Chittagong and other places, the Board found his enemies’ ability to locate him was weak. Furthermore, as the Applicant’s position as general secretary of the Chatra Dal must have been replaced after he had left Bangladesh for almost a year, the Board considered his enemies would have no interest to pursue him.

10.As the Chatra League is only a local unit of the AL, the Board considered it unlikely that the AL would approve and assist the Chatra League’s criminal objective of killing the Applicant. It therefore rejected the Applicant’s claim that internal relocation is infeasible because the AL was able to locate him anywhere in Bangladesh through their network. The Board also found on the basis of authoritative and credible country of origin information (“COI”) that despite deficiencies in the Bangladesh police, the government has taken steps to improve the situation and reasonable state protection is available. Hence, the Board found the Applicant could avoid the risk of harm by seeking state protection and resorting to internal relocation.

11.It also found the dispute between the Applicant and his enemies as well as that between him and the Muslims are by nature entirely personal and private matters with no involvement by any public officials or persons acting in official capacities. The Board therefore found the risk of harm likely to be suffered by the Applicant on his return to Bangladesh is low; the harm falls outside the definition of ‘torture’ under section 37U(1) of the Immigration Ordinance; and there is nothing to show that the Applicant would be at risk of being subjected to BOR 2 ill-treatment. In addition, in respect of the likely harm from the Muslims, the Board found it did not arise on account of any of the reasons protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol. Applying the law applicable to protection under the USM to these facts, the Board found the Applicant is not entitled to protection under any of the applicable grounds. This is the Board’s alternative decision which is founded on the basis that the Applicant’s story is believed.

12.On these two basis, the Board dismissed the Applicant’s appeal.

Legal principles applicable to judicial review

13.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

14.After the legal principles in the preceding section had been explained to him, the Applicant said he had no complaint above errors of law, procedural unfairness or irrationality in the Decision and left it to the Court to look for such vitiating elements in the Decision for him. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and irrationality in the Decision.

15.In his supporting affirmation, the Applicant complained that the Board “failed to consider all the matters rejected in [his] claim”. When asked for particulars, he submitted that he is a Buddhist and Buddhist are in the minority in Bangladesh and are being persecuted. He emphasised strongly on the discrimination suffered by the minority Buddhists. He made no mention about the Board’s finding relating to his harm from his enemies.

16.The Board had fairly set out his complaint about religious discrimination in paragraphs 12.2 to 12.5 of the Decision. It considered COI relating to religious freedom in paragraphs 15.11 to 15.14. It quoted comments and findings from the International Religious Freedom Report for 2017 published by the Department of State of the United States, which may be regarded as an authoritative report from a credible and independent source. While the Board disbelieved him in making its primary decision, it wholly accepted his story as the basis on which its alternative decision was made. The Applicant could not have any complaint about the Board’s failure in considering the risk he would likely suffer as a Buddhist, if returned to Bangladesh. There is no substance in this ground of application.

Overall scrutiny

17.With respect to the Board, its primary decision is fraud with an error of law and irrationality. It is trite law that the burden on a claimant is to prove his claim on a low standard of proof. Even if he failed to prove the centrepiece of claim, the Board must consider if the claim still stands. Here, the centrepiece of the Applicant’s case is the persecution by the Muslims and his enemies, ie the discrimination from the Muslims and threat, assault and pursue by his enemies. What the Board found incredible (with which this Court has no disagreement, particularly as it is a finding of fact solely for the Board) is his story about the man giving him an Indian passport in exchange for his Bangladeshi passport in Pune and his giving the man 10,000 rupees. These events occurred in Pune during his flight from the alleged harm and risk. They occurred after the Applicant felt his life was at risk and a decision had been made to flee his home village. They occurred after he had been subjected to threat, assault and fear of harm which form the centrepiece of his claim. This Court queries what has the event in Pune to do with the centrepiece of his case, the threat, the assault and his fear. The Applicant may have lied to cover up how he obtained an Indian passport. It damaged his credibility. But his lie did not even touch the centrepiece of his case. The Board must have committed an error of law by taking irrelevant matters into account which rendered its primary decision irrational.

18.Hereunder is the Court’s observation relating to the Board’s alternative Decision. Having rigorously examined the alternative 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 relating to the four applicable grounds 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 acceded to the Applicant’s request to make a determination without an oral rehearing. Despite the blemishes mentioned above, it assessed the Applicant’s claim on the basis of his account as he asserted. On the basis of his account and the COI, it did not accept he had proved he would face any real risk of proscribed harm, if refouled. 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 four 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, procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Board’s alternative Decision. The alternative 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 proposed judicial review has no realistic prospect of success.

Conclusion

19.For the above reasons, the Applicant’s leave application is refused.

Dated the 28^th day of April 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