Islam Md Aminul v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2789/2019

[2025] HKCFI 1657

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2789 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Levy:

The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.By prescribed Form 86 filed on 23 September 2019, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 11 September 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 11 January 2019 (“Director’s Decision”) rejecting the applicant's non-refoulement claim.

2.As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 10 April 2025. The applicant attended the hearing in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Background

3.The background as taken from the respective decisions of the Director and the Board referred to above can be briefly stated as follows.

4.The applicant is a national of Bangladesh. He claimed to have entered Hong Kong illegally from mainland China on 7 August 2015. On 10 August 2015, he surrendered himself to the Immigration Department and raised a non-refoulement claim on 11 October 2016. The Director considered the applicant’s claim under all applicable grounds - the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on a fear that if refouled, he would be harmed or killed by members of the Awami League (“AL”) after the applicant’s refusal to join the AL and had previously thrown away the AL’s weapons stored in his restaurant.

5.According to the applicant, he ran a restaurant from 2007 to 2015 in Dhaka. He once delivered food to an AL office. In late 2014, he went to their office to submit bills for their settlement. At the time, the senior AL leaders present there asked the applicant to join AL, and threatened that if he did not join, they would close down his business. Despite the repeated demands, the applicant refused to join the AL.

6.In early 2015, a group of around 25 people from AL came to the applicant’s restaurant and it vandalized with wooden sticks and concealed firearms. They also beat up the applicant and his staff. On subsequent occasions, the AL people threatened to kill the applicant and his family. He went to the local police station to file a case, but the police refused to accept any complaint from him.

7.Subsequently around June 2015, the same AL group of people came to the applicant’s house, beat up all his family members, destroyed all the furniture in the house and looted it. The applicant’s father was seriously injured in that incident.

8.The applicant’s father was very concerned for the applicant’s safety and asked him to leave the country. The applicant then went to his friend’s home and hide there for about four weeks before he took a flight to China on 3 August 2015.

9.In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds. Hence, the applicant’s appeal to the Board against the Director’s Decision.

10.On 14 August 2019, the applicant attended a hearing before the Board. At the Board hearing, the applicant answered questions from the Board with the assistance of a Bengali language interpreter.

11.The Board found numerous discrepancies between the applicant’s evidence in the hearing and his previous evidence contained in the documents he submitted. The Board found that the serious discrepancies had severely undermined the credibility of the applicant’s claims. The Board concluded that the applicant was not a witness of truth. Thus, the Board did not accept the fundamental basis of the applicant’s claim alleging that he faced harm upon return to his home country. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

12.As the Courts have repeatedly stated, determination of the merits of a non‑refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

13.The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation, the applicant advanced 5 grounds in support of the Leave Application. Broadly stated, the applicant contended that the Board (i) had unlawfully fettered its discretion; (ii) failed to meet the greater care and duty owed to an unrepresented claimant; (iii) had acted unreasonably or irrationally; (iv) had acted unfairly procedurally; and (v) had significantly relied on news sources that were not officially recognized or were hearsay. The applicant further asserted that his life and limb were in jeopardy and that he would face hardship if he were re-fouled.

14.In his supporting affirmation, the applicant also reiterated that his present situation in his home country was very dangerous as his enemies were still looking for him. The AL was in power and their members could kill the applicant easily. He also provided further information on his current situation, but did not provide particulars in support of his grounds for relief.

15.At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application. The applicant only stated that he had nothing to say or to elaborate.

16.It is plain that the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable. The grounds the applicant put forth are bare assertions.

17.The Board’s Decision was arrived at after having carefully examined the applicant’s evidence. The Board’s rejection of the applicant’s credibility was based on its assessment of both the documentary evidence as well as the oral evidence that the applicant gave at the hearing. The Board’s findings that the applicant’s claim was not substantiated was based on the significant discrepancies shown and from the unsatisfactory explanation the applicant gave to the questions the Board put to him. These are findings of fact, which the court in a judicial review will not interfere with.

18.Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness in the Decisions of the Director and the Board. I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks.

19.For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Order

20.The Leave Application be dismissed.

Dated the 8^th day of May 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