Dawone Jony v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 207/2020

[2025] HKCFI 2059

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 207 of 2020

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 the Applicant being absent in open court

Order by Deputy High Court Judge (Non-refoulement Claims) Teresa Wu:

1.  Form 86 be amended, naming only the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and the Director of Immigration as the Putative Respondent and the Putative Interested Party respectively.

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

Observations for the Applicant:

Introduction

1.By Form 86 (“Form 86”) dated 20 January 2020, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of (i) the decision of the Director of Immigration (“the Director”) dated 29 May 2019 (“the Director’s Decision”); and (ii) the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 20 December 2019 (“the Board’s Decision”).

2.By the Director’s Decision, the Applicant’s non-refoulement claim was rejected on all applicable grounds (“the Grounds”) under the Unified Screening Mechanism. Such decision was subsequently confirmed in the Board’s Decision.

3.I have amended Form 86 on my own motion, naming only the Board and the Director as the proposed respondent and the proposed interested party respectively.

Background

4.It is unnecessary for me to restate the facts of the present case here. The Applicant’s personal background, his case and claim, including the incidents alleged by him to show that he would be ill-treated or killed by Awami League (AI) in Bangladesh, and the immigration and procedural history, etc. were set out in details in the Board’s Decision. For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.

Discussion

5.The Applicant is absent from the oral hearing. I have proceeded to consider the merits of his present application based on the available materials (see Re Abdus Salam [2019] HKCA 1091).

6.I am not satisfied that the Applicant’s intended challenge of the Board’s Decision, based on the ground below, is reasonably arguable with any realistic prospects of success, and have therefore refused leave (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676):

“The Decision of the Director of Immigration/TCAB was unreasonable, in that he failed to consider all the matters raised in my claim and/ or give adequate reason for his Decision.”

7.First of all, the Director’s Decision is not open to challenge. The decision of an immigration officer is not a decision that is, within the administrative structure, susceptible to judicial review once an appeal to the Board is pursued by a claimant (see Re Moshsin Ali [2018] HKCA 549 at §45; Salvador Eric Garcia v Torture Claims Appeal Board/ Non-refoulement Claims Petition Office & Another [2020] HKCFI 166 at §14; Re Jyoti Gurung [2022] HKCA 1884 at §13, etc.).

8.With respect to the Board’s Decision, given the gravity of the issues involved, I bear in mind that it is essential to apply an enhanced standard, requiring rigorous examination and anxious scrutiny (see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163).

9.The Board determined that the number or nature of the inconsistencies may be sufficiently serious to undermine the reliability of the Applicant’s allegations. Given the discrepancies between the Applicant’s oral and documentary evidence, the Board did not find him to be a credible witness. Notably, the Board concluded as follows:

(1)  The Applicant did not provide any evidence that the violation of human rights existed on a massive, gross and flagrant scale. Even if such violation did exist, it would not be sufficient to determine that the Applicant would face danger of torture upon return to his home country. There must be specific grounds to show that he would be personally at risk.

(2)  On the evidence, the Applicant had not been subjected to torture. No government or state officials were involved, and state protection would have been available. Additionally, there was no evidence that the State had acquiesced the acts of the AL members. There was also no evidence that those harassing the Applicant could detect him outside the immediate vicinity of his home area.

(3)  The Applicant left his home village since the first quarter of 2014 and was no longer involved in any of BNP’s activities. Over time, the Applicant’s position would have inevitably evolved into that of a supporter, even if his evidence were assessed at its highest. The Applicant was no longer in any leadership role, making it unlikely that he would be perceived as a person of significances.

(4)  It would not be impossible or unduly harsh for the Applicant to relocate to other major urban areas of Bangladesh.

(5)  The Applicant did not provide additional materials or facts on BOR 2 risk. At the oral hearing, his evidence was that he had committed no acts or crimes that would justify the government subjecting him to capital punishment. His fear stemmed from the local AL members. However, after considering the Applicant’s case and all available evidence, there was no indication of a personal and real risk of the Applicant facing such risk.

(6)  The Applicant’s evidence was that he was targeted, harassed and beaten because he was a member of BNP and had refused to join AL. However, on the evidence, the treatment he experienced in the past did not reach the minimum level of severity for a claim. The Applicant had not been subjected to torture or CIDTP. After considering all the evidence and materials, the Board did not accept that the Applicant would face a genuine and substantial risk of being subjected to ill-treatment under BOR 3 Risk.

(7)  In the present case, the Applicant’s fear of ill-treatment was not due to race, religion, nationality, or membership of a particular social group, but rather the result of the general animosity between BNP and the AL. He had not come in contact with these individuals since 2014. Given the passage of time, the risk of any feared ill-treatment was assessed as low. Therefore, the Applicant’s case did not warrant non-refoulement protection on the grounds of Persecution Risk.

10.These findings were made by the Board after the hearing, based on his individual allegations, the risk (or otherwise) of harm, the availability (or otherwise) of state protection and the viability (or otherwise) of internal relocation, etc. It must be recognized that the Board was the primary decision‑maker, empowered to evaluate the Applicant’s evidence (see Satnam Singh v Director of Immigration & Another [2019] HKCA 433 at §11.1).

11.The Applicant has not identified any errors of law or procedural unfairness or irrationality in the above decision of the Board.

12.The Applicant’s general assertion that the Board’s Decision was unreasonable does not constitute a valid ground for judicial review. The matters that the Board has allegedly failed to consider are not identified (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244).

13.I also do not accept that the Board had failed to provide adequate reason for its decision. The adequacy of reasons depends on the context in which the decision maker operates and the circumstances of the case. In this instance, the reasons given by the Board clearly demonstrate that it had addressed the substantial issues and articulated its conclusion effectively.

Conclusion

14.For these reasons, I make an order that Form 86 be amended as described above and the Leave Application be dismissed.

Dated the 30^th day of June 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