Ullah Sk Safaet v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3478/2019

[2025] HKCFI 3319

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3478 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.   Leave be granted to the Applicant to issue a judicial review application against the Board’s Decision.

2.   The 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 interested party.

Observations for the Applicant:

Introduction

1.By a “Notice of application to apply for judicial review” in the prescribed Form 86 filed on 25 November 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 1 November 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 29 October 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds.  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003478_2019_files/the_Board's_Decision.pdf

2.The applicant is a Bangladeshi national.  The basis of the applicant’s claim is that (i) he would be harmed or killed by the Awami League (“AL”) due to his membership and active support for the opposition Bangladesh Nationalist Party (“BNP”), and (ii) that he would be arrested by the police due to false charges framed up by the AL members.   The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

3.At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 16 July 2025, which 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.

Discussion

4.The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

5.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.   

6.In his supporting affirmation, the applicant raised the following grounds:  

(a)   the Board’s Decision is unreasonable, irrational and procedurally unfair;

(b)   the Board unlawfully fettered its discretion;

(c)   the Board failed to meet the greater care and duty owed to a self-represented claimant;

(d)   the Board failed to interact with the facts of the applicant’s claim and failed to analyze the supporting documents or to turn its mind to the risk of violation of the right to life under BOR 2;

(e)   the applicant will face hardship in the event of refoulement and the Board has significantly relied on sources of news that are not officially recognized or are simply hearsay;

(f)    the Board has relied on outdated cases, and the lack of credible sources of information has resulted in the Board making groundless speculations.

7.At the hearing, this court asked the applicant whether he had any further grounds he wished to submit in support of the Leave Application. The applicant stated that everything he wanted to say had already been set out in papers and that he had nothing to add apart from updating this court that he had married a Hong Kong resident in 2022 and has a child who is now 1 year and 9 months old. He had applied for a dependent visa on 30 September 2024.

8.As the Courts have repeatedly stated, 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.[3]  In the present case, due to the discrepancies in the applicant’s oral evidence and his documentary evidence, the Board did not find the applicant’s evidence to be credible, and therefore attached very little weight to it.  The Board found that there was no evidence that the alleged assaults inflicted on the applicant by the AL members involved any of the AL leaders or members acting in any official capacities.  Thus, it concluded that there was no state acquiescence.  It also found that the past ill-treatment did not attain the minimum level of severity.  Having also regard to the passage of time, the Board assessed the risk of any feared ill-treatment was low. The Board also found that state protection was available and that internal relocation would be viable.  Thus, the Board found that there was no real risk of harm.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

9.In the present case, however, it seems reasonably arguable that the Board’s Decision is erroneous in law, tainted by procedural unfairness, unreasonable and does not meet the required high standards of fairness, for the reasons set out below.

Adverse credibility assessment

10.Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, I should consider whether the Board had observed a very high standard of fairness^[4], which  obliges a decision-maker (in the present case the Board), to  among other give the applicant every reasonable opportunity to establish his claim; to adopt an active role by drawing attention to the applicant “matters that needed clarification or elaboration so that they can be addressed by” the applicant[5]; and to give an applicant a reasonable opportunity to address any issues that may result in adverse credibility findings, so that the applicant may address the case against him.^[6]

11.In the present case, the Board’s adverse credibility assessment was largely due to the new evidence and allegations the applicant put forward at the hearing before the Board, which were inconsistent with the applicant’s documentary evidence. The Board had questioned the applicant about the new allegations raised at the hearing, and was largely dissatisfied with his explanation. However, in finding that the applicant’s evidence to be incredible, the Board’s Decision does not show that the Board had drawn the applicant’s attention to the perceived discrepancies.  The Board also did not question him about his core allegations in his factual account in the non-refoulement claim.

12.In the circumstances, it appears that the Board has failed to apply a high standard of fairness in its credibility assessment by drawing the applicant’s attention to the inconsistencies in his evidence, or give him a fair and reasonable opportunity to explain or respond.  Thus, the Board’s Decision is arguably tainted by procedural unfairness.

Assessment of past ill-treatment

13.After having considered the applicant’s account of his past ill-treatment, the Board found that the acts or conduct of his assailants had not attained the degree of “severity” in pain or suffering to fall within the definition of “torture”  (Board’s Decision [80]), and that the treatment in the past had not attained the minimum level of risk (Board’s Decision [175]).  The Board’s assessment was based on its narration of the applicant’s past ill-treatment inflicted by AL members on the applicant, including arrest, detention and assaults by police after he was falsely accused of committing murder and bombing. 

14.However, in its assessment of risk of harm, the Board made no mention of the applicant’s evidence the Board set out in the Board’s Decision (at [34]) that while in custody, the police handcuffed and tied him to the ceiling fan clamp, beat him with batons for about half an hour for 3 or 4 times on the first night.  On the second night, the applicant was beaten up for 10 minutes.  He was only released after 2 months.  The Board not only had failed to consider all relevant evidence of harm or ill-treatment, it had also failed to consider or make a specific finding as to the various incidents of ill-treatment before concluding that they did not reach the requisite requirement of risks.

15.High standards of fairness require the Board to consider all relevant considerations, including taking into account every factor that might tell in favour of the applicant[7].  As the Board has failed to consider all the evidence of the harm or ill-treatment, and did not state why it considered the past ill-treatment did not attain the requisite level of severity, it was not open to the Board to conclude at [80] of the Board’s Decision that none of the harm or ill-treatment had attained the requisite degree of “severity” when assessing the risks of harm. 

16.Further, the Board’s finding at [86] of the Board’s Decision that there were no public officials involved in any of the harm or ill-treatment also appears to be erroneous. The police who inflicted injuries using various methods are plainly public officials. In the circumstances, the Board’s conclusion is irrational.

17.In the circumstances, the Board’s assessment of the risks of harm based on the past ill-treatment appears to have been erroneous and unreasonable.

Board’s assessment of the future risk

18.In [152] and [153] of the Board’s Decision, the Board assessed the level of risk to have been low for the reason that the applicant had been away from his country for 4 years. In coming to this conclusion, the Board did not seem to have taken into account the fact that there was no evidence indicating that the false criminal charges against the applicant had been withdrawn.

19.Thus, the Board’s assessment of the future risk also appears to have been erroneous and unreasonable. The Board’s Decision is arguably tainted by procedural unfairness and does not meet the required high standards of fairness.

COI, state protection and internal relocation

20.From the applicant’s account of events, the relevant COI should be on arrests and treatment of detainees, the judicial system concerning access to court and fairness in the judicial process, especially those concerning political prisoners.

21.However the wide range of the COI the Board referred to, it seems that the police might ignore bail procedures, and that there were arbitrary arrests and detention without specific charges, including periodic arrests of opposition activists (Board’s Decision at [118] to [119]).  The COI on the court system indicated that judicial independence in Bangladesh was compromised due to corruption and political interference, and that the judiciary did not always protect the right to a fair and public trial[8]. The COI on political prisoners indicated that the ruling AL arrested thousands of opposition members and supporters, and weaponized the justice system by bringing politically motivated cases against opposition party members[9].

22.From the COI set out in the above, which the Board referred to, it appears that not only it did not support the Board’s conclusion that reasonable state protection would be available, it tends to corroborate and support the applicant’s case.

23.In any event, it appears that  the Board did not engage in any weighing or analysis of the COI, or explain why it might have preferred some COI over others: A, B, C, D and E v Torture Claims Appeal Board, [2024] HKCA 471 at [33] to [34].  Importantly, there was no finding as to whether the applicant would likely receive a fair trial in Bangladesh.

24.In assessing the availability of internal relocation, the Board appears to have failed to take into the applicant’s fear of the state (especially the unresolved framed up criminal charges). A high standard of fairness requires the Board, when assessing internal relocation, to direct its focus in considering the applicant’s fear “whatever its source, and the possibility of living free from that fear somewhere else in the same country”: TK v Jenkins [2012] HKEC 1597 at [39]. The Board’s consideration of the COI did not appear to have specifically address the applicant’s fear of the police action concerning the criminal charges.  Hence, there is no reasonable basis for the Board to find that internal relocation would be viable.

25.For the above reasons, it seems at least reasonably arguable that the Board’s Decision is wrong at law, tainted by procedural unfairness and that it does not meet the required high standards of fairness.

Conclusion

26.In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

27.Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s decision, 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 respondent and the Director as an interested party.

Orders

28.Leave is granted to the applicant to issue a judicial review application                 against the Board’s Decision.\

29.The 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 respondent and the Director as an interested party.

Dated the 7^th day of August 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