Haque Mohammad Amdadul v. Non-refoulement Claims Petition Office

HCAL 1476/2020

[2025] HKCFI 3474

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1476 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:

1.  Form 86 be amended on the court’s own motion as follows:-

a.  the Non-refoulement Claims Petition Office be named as the Putative Respondent; and

b.  the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 14 July 2020 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Non‑refoulement Claims Petition Office (the “Board”) dated 29 May 2020 (the “Board’s Decision”).

2.As per usual practice that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party, I make an order to amend the Form 86 accordingly on the court’s own motion to ensure that the proper parties are named.

3.An oral hearing was requested by the Applicant. It took place before me on 24 July 2025 (the “Hearing”) but the Applicant was absent.

Background

4.The Applicant’s background, the basis of his claim, the procedural history 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’s case is that he would be harmed or killed by members of the Awami League (“AL”) and Bangladesh Nationalist Party (“BNP”) if he were to return to Bangladesh because of his involvement in a political party named Jamaat-e-Islami (“JEI”).

Discussion

5.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 reviewable error. Findings of fact (including risk of harm, availability of state protection and internal relocation alternatives) are 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.

6.It is the duty of an applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J (as he was then) at §142.

7.No grounds of review have been set out in the Form 86 or the Applicant’s affirmation in support. The Applicant only made general assertions that the Board’s Decision was unreasonable and that the Board failed to consider all matters raised and/or failed to give adequate reasons.

8.Notwithstanding the Applicant’s absence at the Hearing, I have considered the Board’s Decision in detail. I do not find any error of law, procedural unfairness or irrationality. There is nothing to indicate that the Board had failed to take into account any relevant matters or that it had taken into account irrelevant matters.

9.In my view, the Board’s Decision is supported by reasons. In the circumstances, the Board is entitled to reach the finding that there was no real risk of harm to the Applicant should he return to Bangladesh:-

(1)  Even after taking into account lapse of memory and other factors which may affect the consistency of the Applicant’s evidence (§§101-102), the Board found the Applicant’s factual account to be unreliable given the various inconsistencies in his evidence and his inability to describe key events (e.g. the death of his parents and the incident in which he said he was assaulted by AL members in 2007) in a coherent narrative (§§103-108).

(2)  In any event, it was unlikely that the Applicant’s political enemies would have the motivation to pursue the Applicant, as the Board has found that he has suffered no serious harm since January 2007 and the claim he was assaulted in October 2012 for a second time was rejected. It was only the Applicant’s speculation that there would be any interest in him should he return to Bangladesh given that the Applicant was a relatively low level member of the JEI (§§93, 111-112).

(3)  The Applicant also shifted his case significantly. Despite initially claimed that he feared harm from the BNP as well as the AL, as the Hearing before the Board, he appeared to have abandoned his claim about the alleged threat from the BNP (§113).

10.The Board was also entitled to find that reasonable internal relocation alternatives were available, having considered relevant Country of Origin information and the Applicant’s personal circumstances (§§114-115):-

(1)  The Applicant did not fear that he would suffer harm from the police or state authorities in Bangladesh.

(2)  He had attained a reasonable level of education with business experience in Bangladesh.

(3)  As a junior party member, it was unlikely that the Applicant would be recognized outside locality.

11.Hence, I am not satisfied that it is reasonably arguable with a realistic prospect of success that the Board’s Decision is irrational even on the enhanced Wednesbury standard.

12.Accordingly, I refuse to grant leave for judicial review.

Conclusion

13.In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed.

Dated the 28^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