Ahmed Rubel v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2833/2019

[2025] HKCFI 3824

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2833 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:

The applicant’s application for leave to apply for judicial review be dismissed.

Introduction

1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 26 September 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 20 September 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 9 January 2019 (“Director’s Decision”) rejecting the applicant's non-refoulement claim.

2.As the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 3 June 2025. 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.

Background

3.The background as taken from the Director’s Decision and the Board’s Decision can be briefly stated as follows.

4.The applicant is a national of Bangladesh. He was arrested by police on 8 March 2017 and was referred to the Immigration Department on 10 March 2017.  Upon enquiry, he departed Bangladesh on 14 February 2017, arrived the next day in Guangzhou, and remained in mainland China until 8 March 2017 when he swam from Shenzhen to Hong Kong illegally. The applicant raised his non-refoulement claim on 10 April 2017.

5.The applicant’s claim was considered under all applicable grounds i.e. risk of torture^[1], BOR 2 risk^[2], BOR 3 risk^[3] and persecution risk^[4] under the USM.^[5]  The claim was based on a fear that if refouled, he would be harmed or killed by members and/or supporters of the Awami League (“AL”) due to his support for the rival Bangladesh Nationalist Party (“BNP”), in particular as he had served as the BNP secretary for Sheola Union in Sylhet District.

6.According to the applicant, he and his brother (or cousin) Zaman were BNP supporters.  Zaman had previously served as BNP secretary for Sheola Union, until he was seriously injured at a BNP rally in January 2016 (which the applicant attended) where many AL members attacked the BNP supporters with bamboo sticks, while the police, who accompanied the attackers to the rally, stood by and did nothing to stop the attacks.  Zaman’s hand and legs were fractured, and he was hospitalized for 5 or 6 months. Around two days after he was discharged from hospital, a group of AL members came to the applicant’s home and killed Zaman with a chopper.  The applicant’s family went to the police station to file a complaint against the AL members. However, the police refused to take the complaint because AL was the ruling party.

7.In June or July 2016, the BNP leaders assigned the applicant as BNP Secretary for Sheola Union. Subsequently, a group of 5 to 20 AL members targeted at and tried to kill him. At one point, they broke into and looted his store.  In late 2016, an AL member set the applicant’s family store on fire when he was not present. When he complained to the police about the incident, they did nothing to investigate after making a record of the incident.  In late 2016, some AL members came to the applicant’s home. Fearing that they would kill him as they had killed Zaman, the applicant fled to Dhaka before departing his country.

8.In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds. Hence, the applicant’s appeal to the Board against the Director’s Decision.

9.On 31 May 2019, the applicant attended a hearing before the Board.  At the Board hearing, the applicant gave oral testimony and answered questions from the Board with assistance from a Bengali language interpreter.

10.While there was no passport or other identity documents included in the hearing bundle before the Board, the Board accepted that the risk State was Bangladesh after having examined the applicant’s claims.  The Board found that the applicant was not a credible witness due to major discrepancies between his testimony at the Board hearing and his prior evidence given to the Director.  The Board had raised these discrepancies with the applicant, but he was unable to provide a satisfactory explanation.

11.On the totality of the applicant’s evidence, the Board did not accept that the applicant faced a real chance of harm of any type in Bangladesh in the reasonable foreseeable future should he be refouled.  The Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

12.As the Courts have repeatedly stated, determination of the merits of a non‑refoulement claim is essentially a matter for 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.

The applicant’s grounds

13.In his Form 86 and supporting affirmation, the applicant raised the following grounds for judicial review, stating that the:

(a)  Board unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that it did not satisfy the requirement;

(b)   Board acted in a procedurally unfair manner;

(c)  Board’s Decision was unreasonable or irrational, and was tainted by procedural errors or unfairness;

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

(e)  Applicant was not given an opportunity to make oral or written submissions;

(f)  Board significantly relied on news sources that were not officially recognized or hearsay, and relied on cases which were outdated in light of dramatic changes; the lack of credible sources of information that had resulted in the Board’s making of groundless speculations that it was safe for the applicant to return to his country.

14.At the hearing, this court asked the applicant whether he had any further grounds he wished to submit in support of the Leave Application. He stated that he had political problems in his country. His family back home had problems and he wanted to stay in Hong Kong.

Discussion and conclusion

15.Despite the number of written grounds that the applicant put forth in the Leave Application, they are either vague or do not condescend to particulars. At the hearing, the applicant was unable to specify on what basis the Board was said to have acted unlawfully or procedurally unfair in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

16.After having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness.  I am satisfied that there were no errors of law or procedural unfairness or irrationality in the Board’s Decision. 

17.For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Order

18.The applicant’s application for leave to apply for judicial review be dismissed.

Dated the 29^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