Rahman Mohammad Hafizur v. Torture Claims Appeal Board

HCAL 3386/2019

[2025] HKCFI 3119

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3386 OF 2019

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 for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 14 November 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 30 October 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/HCAL003386_2019_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s non-refoulement claims were not made out on any of the applicable grounds under the Unified Screening Mechanism (‘the USM”). Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 19 June 2018.

The applicant’s case

3.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

4.In sum, the applicant claimed for non-refoulement protection because of his political support for the Bangladesh Nationalist Party (“BNP”). He joined BNP in 2001 and was BNP president at Daripur Union level in Meherpur district. Between 2001 and 2009, the applicant had many political clashes with the Awami League (“AL”), which had ruled Bangladesh since 2008. Due to ongoing conflicts between BNP and AL, high ranking BNP leaders were targeted for threats, suppression and were beaten up and killed by AL. As a BNP Union level president, the applicant claimed that he was one of those targeted. He was falsely set up as one of the four defendants in a murder case concerning an AL leader named Ripon who was murdered at Meherpur. AL then sent four people from the Rapid Action Battalion (“RAB”) to the applicant’s home to demand 5 million taka from him to spare his life. The applicant believed that his life was in danger and hence left Bangladesh after bribing the immigration officials at the airport.

Grounds for judicial review

5.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

6.However, the applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation filed on 14 November 2019. He only stated in the affirmation that he sought to apply for judicial review against the decision of the Board as well as the Director.

Discussion

7.First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as there are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, [2018] HKCA 549). This court will only consider the Leave Application in respect of the Board’s Decision.

8.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).

9.Thus, it is not for this court to re-assess the applicant’s non-refoulement claim, but this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality, despite that the applicant did not advance any ground for the intended judicial review.

10.In assessing the applicant’s claim, the Board held an oral hearing on 13 March 2019. The applicant was present. The Board questioned the applicant in detail to clarify the issues and incidents that gave rise to his non-refoulement claim.

11.Having considered the applicant’s evidence carefully, the Board accepted that the applicant might be a BNP supporter or member, but the evidence before the Board did not suggest that the applicant was an active or high-level supporter of the party.

12.The Board found numerous inconsistencies in the applicant’s written and oral evidence concerning the core issues of his claim. The applicant also made a new claim during the Board’s hearing that he had been stabbed by AL members in about November 2008, which cast doubt on his credibility, as the Board found it surprising that the applicant would not have made reference to something as serious as this to the Immigration Department at the first tier screening.

13.The numerous concerns cumulatively led the Board to reject the applicant’s claims, including the claim that he was implicated in Ripon’s murder and targeted by RAB. The Board did not accept that RAB visited the applicant or showed him a crossfire list with his name on it or asked him to pay five million taka, or that they visited him or his home at any other time either while he remained in Bangladesh or since his departure. The Board further did not accept that the applicant’s photograph was seen in various police stations, nor that he bribed an immigration officer to leave Bangladesh.

14.Although the Board noted from country of origin information that violence arising from political opposition was common in Bangladesh, the Board found that ordinary opposition party members or supporters did not face a real risk of serious harm including persecution from state or non-state actors, and only high profile political figures would more likely be targeted with politically motivated charges.

15.Considering its finding on the applicant’s profile and involvement in BNP, the Board was not satisfied that the risk of torture, ill-treatment, arbitrary deprivation of life or persecution that the applicant faced from local AL supporters and/or Bangladeshi authorities amounted to a real, as opposed to a remote, risk.

16.Thus, the Board did not accept that the applicant faced a real risk of any of the proscribed forms of harm from AL members in his local area due to his support of BNP. The Board also assessed the viability of internal relocation for the applicant. The Board considered that the applicant, who had 14 years of education and 13 years of work experience including owning his own business, could reasonably and safely relocate to another area of Bangladesh such as Dhaka, Chittagong or Khulna, since the applicant’s perceived risks, even if real, were likely to be localized.

17.Thus, the Board did consider the applicant’s alleged danger in his home country but rejected the applicant’s claim.

18.The finding of facts relating to a non-refoulement claim is solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong in the way the Board reached its decision.

19.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 errors of law, procedural unfairness or irrationality in the Board’s Decision. 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.

20.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 has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

21.For reasons aforesaid, the Leave Application is dismissed.

Dated the 22^nd day of July 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