Hossain Arif v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2791/2019

[2025] HKCFI 1728

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2791 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:

1.  The Form 86 be amended on the court’s own motion.

2.  The Leave Application be granted.

3.  Applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as the respondent and the Director as the interested party.

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 9 September 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 6 July 2018 (“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.

3.In the Form 86, the applicant named both the Board and the Immigration Department as the proposed respondents and proposed interested parties. As the Board should have been the proposed respondent and the Director proposed interested party, this court will amend the Form 86 on its own motion.

Background

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

5.The applicant is a national of Bangladesh. He arrived in Hong Kong on 2 July 2006 and was permitted to remain as a visitor until 16 July 2016. He did not depart, and overstayed. In December 2006, the applicant made a refugee claim, which was rejected by the United Nations High Commissioner for Refugees in Hong Kong in 2009. On 7 January 2007, the applicant was arrested by police for overstaying, and was referred to the Immigration Department. On 4 July 2009, the applicant raised a torture claim[1] . By his decision dated 6 February 2014, the Director rejected the applicant’s torture claim.

6.On 4 April 2014, the applicant lodged a claim for non-refoulement protection under the risk of torture[2]. On 12 April 2018, the Director informed the applicant that the applicant’s previous torture claim would not be reviewed and that his claim would therefore be considered under all applicable grounds other than the risk of torture, i.e. BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5] under the USM.[6] The claim was based on a fear that if refouled, he would be harmed or killed by the brother of the applicant’s father, Mahammadullah (“Uncle M”), who had killed his father and wanted to occupy the land of the applicant’s father.

7.According to the applicant, his paternal grandfather owned lots of land in Raipur City. Since the death of the applicant’s grandfather in around 1992, there had been an on-going dispute between the applicant’s father and Uncle M, who had wanted to take all the land. In late 2005, Uncle M came to the applicant’s home with two men, and attacked the applicant’s father with a chopper. The applicant’s father died from his injuries. The applicant went to the police to report the murder of his father, but the police refused to take any action because he could not pay the bribe demanded by the police.

8.After the death of the applicant’s father, Uncle M took all of his father’s land. A few days after his father’s funeral, the applicant was assaulted by an associate of Uncle M. About a week later, the applicant, together with a group of elders from his village, went to confront Uncle M about the land and the murder of his father. Uncle M said that he would kill the applicant if he attempted to reclaim his father’s land.

9.As he was terrified of Uncle M, the applicant fled his home and went to live with his aunt in Faridganj, where he did not experience any problems or trouble. However, about six months later, his aunt found out that Uncle M was looking for him. The applicant therefore left Bangladesh on 30 June 2006.

10.In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds other than the ground on torture risk. Hence, the applicant’s appeal to the Board against the Director’s Decision.

11.On 14 June 2019, the applicant attended a hearing before the Board. At the Board’s hearing, the applicant gave oral testimony with the assistance of a Bengali language interpreter, and answered questions from the Board.

12.The Board found that the applicant was a credible witness and that his evidence was largely consistent. Despite the vague nature of his evidence at the Board hearing and some minor inconsistencies in his evidence, the Board accepted the applicant’s factual account of events in Bangladesh.

13.Based on the applicant’s accepted factual account, the Board found that that there was a small but real risk of harm from Uncle M under BOR 3 (i.e. cruel, inhuman or degrading treatment or punishment (“CIDTP”)) if the applicant were to return to his home area in Bangladesh. However, the Board did not consider that there would be a real risk that the applicant’s presence in a city or town outside his home area would come to the attention of Uncle M or his association that would lead to him being subjected to CIDTP. He found that state protection and internal relocation were both reasonably viable, in which that would attenuate the risks of harm. Thus the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

14.As for BOR 2 risk, the Board did not accept that there were substantial grounds to believe that the applicant would face a real risk of being subjected to the death penalty or being arbitrarily deprived of his life, as the applicant had not been charged with a criminal offence in Bangladesh.

Legal principles applicable to judicial review

15.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

16.The applicant’s Form 86 and supporting affirmation did not contain any grounds for seeking relief.

17.At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application. Apart from stating that the Board had made mistake, the applicant said that he had nothing to say. He further stated that the Board “did not review his case properly” for not having taking into consideration of the fact that Uncle M had killed his father and that he had refused to pay bribes demanded by the police. He also told this court of his personal circumstances in Hong Kong in that he now has 2 sons aged 12 and 13 from his marriage to another Indonesian non-refoulement seeker.

18.As stated above, the Board had accepted the applicant’s account of the past events before his departure from Bangladesh. The Board’s rejection of the applicant’s claim in relation to BOR 3 risk and the persecution risk was based on the Board’s findings of the availability of state protection and internal relocation. This court notes that when discussing the feasibility of internal relocation and state protection, the Board has not identified any specific items of COI that it relied on in reaching its conclusions on internal relocation or state protection. In the discussion regarding internal relocation (Board’s Decision at [44] – [47]), the Board referred to the population of Bangladesh and suggested that the applicant should be able to successfully relocate to a large city such as Khulna, Dhaka or Chittagong. When considering state protection (Board’s Decision at [52] to [55]), the Board stated that there was “independent information” indicating an imperfect but functioning system of law and order in Bangladesh.

19.In A, B, C, D and E v Torture Claims Appeal Board, [2024] HKCA 471 (Kwan VP & K Yeung J), the Court of Appeal held at [33] – [34] that the Board is required to demonstrate that it has conducted a proper and independent assessment of COI and made its own findings. The Court of Appeal also pointed out that because the Board did not mention or refer to the COI submitted by the applicant, it would not be apparent to an objective reader of the Board’s decision whether the Board had properly considered such COI, and thus the Board failed to demonstrate that it had conducted an independent assessment of the COI.

20.As discussed in [18] above, the Board has not specifically cited or mentioned the relevant COI it had considered when coming to its findings on the availability of state protection and relocation. Notwithstanding a reference in [31(e)] of the Board’s Decision that the Board had taken into account of the information and evidence contained in the ‘Hearing Bundle of Documents” that included the “relevant ‘country of origin’ information from a number of independent sources about the human rights and security conditions in Bangladesh, there is no suggestion as to which specific COI the Board has relied on and what weight it had given to the relevant COI. It would not be apparent to an objective reader of the Board’s Decision whether the Board had properly considered any relevant COI.

21.In the circumstances, it seems reasonably arguable that the Board has failed to provide adequate reasons for its decision. Thus the Board’s Decision in relation to BOR 3 risk and persecution risk is tainted by procedural unfairness and/or does not meet the required high standards of fairness.

22.As for the Board’s finding on BOR 2 risk, I am satisfied that the Board has correctly applied the law relating to this ground and observed a very high standard of fairness in its decision. The applicant’s intended challenge to this ground is not reasonably arguable with realistic prospect of success such that would enable this court to grant leave.

Conclusion

23.In the premises, and for all the given reasons, I am satisfied that there is a realistic prospect of success in the intended judicial review in relation to the grounds on BOR 3 risk and persecution risk, but no no merits in relation to the ground on BOR 2: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. Leave is granted to the applicant to apply for judicial review of the Board’s Decision in relation to BOR 3 risk and persecution risk but refused the granting of leave on the ground of BOR 2 risk. Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s Decision in relation to BOR 3 risk and persecution risk , and direct that he shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as the respondent and the Director as the interested party.

Order

24.The Form 86 be amended on the court’s own motion.

25.The Leave Application be granted.

26.Applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as the respondent and the Director as the interested party.

Dated the 14^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