Islam Sirazul v. Non-refoulement Claims Petition Office

HCAL 1252/2020

[2025] HKCFI 3464

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1252 of 2020

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

Following;

	consideration of documents only;          or
	consideration of documents and the Applicant being absent at the hearing in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Val Chow:

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 22 June 2020 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of an adjudicator of the Non‑refoulement Claims Petition Office (the “Board”) dated 10 June 2020 (the “Board’s Decision”).

2.An oral hearing was requested by the Applicant. It took place before me on 23 July 2025 (the “Hearing”) and the Applicant was absent. Nevertheless, I shall consider his application on paper.

Background

3.The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference. In short, the Applicant claims that he will be seriously harmed or even killed by members of the ruling party, the Awami League (“AL”) as he is a member of the opposition party, the Bangladesh Nationalist Party (“BNP”).

Discussion

4.It is well established that determination of the merits of a non-refoulement claim is essentially within the remit of 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.

5.As I understand from the Form 86 and the Applicant’s supporting affirmation, the proposed grounds of review are summarised as follows:-:-

(1)  There was lack of procedural fairness at the hearing before the Board:-

(a)  The hearing bundles for the hearing before the Board were served only a few days before the hearing on 12 August 2019 (the “Board Hearing”) and most of the documents were in English.

(b)  The Board made a decision of the Applicant’s claim under Article 2 of the Hong Kong Bill of Rights Ordinance (“BOR 2 claim”) without screening of the same ground by the Immigration Department.

(c)  The Board did not conduct the hearing of the Applicant’s appeal/petition with sufficient inquiry. The Applicant went as far as claiming that the Board and the Immigration officer should take a tour of Bangladesh in order to understand the real danger faced by the Applicant.

(2)  The Board’s Decision was irrational, in particular, the Applicant complained that the COI materials relied upon by the Board were unreliable and outdated.

Procedural impropriety

6.The Applicant’s first allegation is that he was being unfairly prejudiced for not being able to review the documents in the hearing bundles in sufficient time for the Board Hearing.

7.However, the allegation is unparticularised:-

(1)  He has failed to exhibit copies of the documents in the said bundles.

(2)  He has not even informed the court what documents were in the hearing bundles.

(3)  He has failed to condescend to particulars as to exactly what difficulties he faced at the hearing because of the alleged language difficulties.

8.Such failings are contrary to the duty of full and frank disclosure[2] expected of an applicant for judicial review.

9.Without knowing what documents were in the hearing bundles, it is not possible for this court to determine what documents were not translated and to assess whether any unfairness may result from the lack of translation.

10.I also reject the Applicant’s claim that he was not able to obtain sufficient assistance to allow him to understand the English documents:-

(1)  The Notice of Appeal/Petition (the “NOA”) dated 12 June 2018 was completed by the Applicant in English. I also note that an 8-page submission containing his grounds of appeal in English was enclosed to the NOA. The Applicant’s supporting affirmation for the Form 86 is also written in English.

(2)  As indicated in his NOA, the Applicant requested the provision of a Bangla interpreter at the hearing and I have no reason to believe that he had not been provided with one. If there were any documents which he had difficulty understanding, he could elicit the assistance from the interpreter at the hearing.

(3)  In any event, the high standard of fairness required by law does not entail interpretation or translation service being made available at any time desired by an applicant, see: Re Gurung Sagar [2019] HKCA 658 at §12.

11.As to the Applicant’s complaint that he was not screened by the Immigration Department on the BOR 2 claim before the Board’s Decision, this is plainly incorrect. The BOR 2 claim was considered and rejected by the Immigration Department in its Notice of Decision dated 31 May 2018.

12.Finally, I reject the Applicant’s general assertion that the Board did not conduct sufficient inquiry. From the Board’s Decision, the Board had considered the evidence of the Applicant in detail and asked appropriate questions to the Applicant at the hearing (§6). The Applicant has not adduced any evidence to suggest otherwise. I also reject the Applicant’s assertion that the Board and the Immigration Department were bound to pay a visit to Bangladesh, as the need to understand the situation in Bangladesh can generally be fulfilled by reference to appropriate COI.

Irrationality

13.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly applied the key legal principles relating to the four applicable grounds; the burden of proof and standard of proof; correctly identified the issues and observed a high standard of fairness. As is clear from the Board’s Decision, the Board has analysed the Applicant’s evidence carefully (§§9-37) and rejected his factual account after a meticulous analysis (§§44-47):-

(1)  The Board was plainly entitled to do so in light of (i) the many material inconsistencies in his evidence and contradictions between his oral evidence and the Torture Claim Form; (ii) despite claiming to be a member of BNP, the Applicant had little knowledge of even basic information concerning the party (e.g. its founder and the colours of its flag and logo); and (iii) the lack of objective evidence in support of the Applicant’ factual case.

(2)  The Board was also entitled to form that view that reasonable internal relocation alternatives were available given that the Applicant was an able-bodied adult and there was also no evidence that the AL would expand huge resources to locate the Applicant who was only an ordinary member of the BNP (§§66-70).

14.Hence, the Board is entitled to come to the conclusion that the Applicant would not face any risk of harm after returning to Bangladesh because: (i) the Applicant had not actually suffered any physical or mental harm as alleged by him; and (ii) in any event there would be no motivation for AL members to pursue the Applicant, who was an ordinary BNP member 6 years after the alleged events.

15.I also reject the Applicant’s complaint about the quality of the COI (Board’s Decision at §§48, 67-68):-

(1)  Contrary to the assertion by the Applicant, most of the COI materials relied upon the Board were obtained from government sources (e.g. the US Department of State, the UK Home Office, the Bangladesh government) and were prepared between 2017 to 2018 (i.e. about 2-3 years before the Board Hearing).

(2)  The Applicant’s allegation that the COI relied upon by the Board is unreliable and outdated is vague and completely devoid of particulars.

(3)  Further, the Applicant has failed to adduce any evidence to show that the Board’s reliance on the COI cited in the Board’s Decision was misplaced. There is simply no evidence that these contents of those COI were inaccurate or out of date.

16.Accordingly, the Board’s decision satisfies the enhanced Wednesbury standard and is not irrational.

Conclusion

17.In short, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.

18.In the premises, I make an order that the Leave Application be dismissed.

Dated the 21^st 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