Rahman Md Mizanur v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3234/2019

[2025] HKCFI 4764

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3234 of 2019

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

Following:

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 30 October 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 25 October 2019 dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 29 May 2019 (the “Notice”), refusing his application for non-refoulement protection.

Background

2.The Applicant is a national of Bangladesh, now aged 50. He entered Hong Kong illegally on 26 December 2018.  He surrendered to the Immigration Department on 28 December 2018.  He made a non-refoulement claim by way of written significations dated 11 January and 20 February 2019.  In due course, his claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  His claim was rejected by the Director’s Notice.  His appeal was dismissed by the Board’s Decision.  He now applies for leave to apply for judicial review of that Decision.

3.His personal background, the factual background leading to the present application, the basis of his claim and the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[5] for reference.  In gist, he claims that if returned to Bangladesh, he will be ill-treated or even killed by six members of the Awami League (“AL”), (collectively, the “enemies”), because he was a general party leader of the Bangladesh Nationalist Party (the “BNP”) in the area where he lived.  

4.The Applicant claimed that he became a member of BNP since he was a student.  After becoming the president of the Shodoki Union, he became a general party leader of BNP in his village.  He and his three brothers, who were also BNP members, ran three shops in the village selling clothes and cosmetics.  Since the AL came into power in 2009, his enemies started demanding for money from the Applicant’s shops once a month or every other month.  They said the money was penalty for him being a BNP supporter and threatened to block the roads to his shops if he refused to pay.  They also threatened to kill him and his brothers. He filed a complaint with the police in 2010 but no action was taken.  Three of his enemies threatened to kill him if he complained to the police again. 

5.His enemies also asked him to leave the BNP and join the AL once every three to four months.  When he refused, they pushed, kicked him and slapped him.  In 2009 or 2010, three of his enemies and another man attacked him with bicycle chains.  They threatened to kill him if he continued to support the BNP.  He received medical treatment at a health complex but he was scared to report the matter to the police.  In March 2012, three of his enemies and two or three other men attacked him with hockey sticks, uttering the same threat to him.  He fainted.  On regaining consciousness, he found himself in the health complex.  He made a report to the police but no action was taken.  In early 2018, three of his enemies and 10 to 12 other men attacked him with iron rods and knives in his house.  He felt unconscious.  His wife told him that his enemies stopped attacking him after she promised them that he would leave his home village.  He was then taken to the health complex for treatment.  His Enemies also arrived at the health complex and asked him to leave immediately but they were prevented by his relatives and he stayed at the health complex for the night.  He did not report the incident to the police on this occasion.  In the end of 2016, his enemies with nine to ten men abducted him to an unknown place where they tied him to a tree and hit him with a pistol and sticks.  Before leaving, they threatened to kill him or make him mentally sick if he did not join the AL.  He was rescued by some patrolling night guards and taken to a local clinic.  Again, he did not make a report to the police.        

6.He closed his shops in the beginning of 2018 and left his home village.  He went to India three times, ie March, July and October 2018.  To avoid his enemies, he went to stay in various places in Bangladesh and eventually sneaked into Hong Kong.   

The finding of the Board

7.The Applicant testified before the Board.  The Board noted that although he had been attacked frequently by his enemies from 2009 to 2018, and had never once agreed to leave the BNP and to join the AL throughout this nine years period, his enemies never carried out their threat of killing him.   Likewise, his enemies also had threatened to make it difficult for him to run his shops by blocking the roads to his shop in 2009, but he was able to run his shops until early 2018.  These facts suggest that his enemies were never serious in carrying their threats.  On the other hand, the Board found the evidence strongly suggests that his enemies were merely uttering empty threats of death if he refused to quit the BNP to join the AL and that in fact their main goal was to extort money from the Applicant who partly acceded to such requests. Furthermore, the evidence shows that none of his family members was harmed at all.  The Board therefore found it hard to understand that why the enemies only targeted him but not his brothers, who were also BNP members.  The Board also found the injuries suffered by the Applicant did not attain the minimum level of severity. 

8.On the basis of country of origin information (“COI”), the Board accepted that there are problems of corruption and abuse of power in the police in Bangladesh.  But the same COI also suggested that the Bangladeshi government has taken practical steps to improve the police effectiveness and efficiency.  Thus, it considered reasonable state protection would be available to the Applicant on his return to Bangladesh.  In addition, being a body-abled person, he can relocate to other parts of Bangladesh to further negate the perceived risk of harm from his enemies, which was localised in his home area.  

9.Applying the law applicable to the non-refoulement protection under the USM to the facts it found, the Board concluded that the Applicant had failed to establish the factual basis to support his claims for protection under any of the applicable grounds under the USM.  Hence, it dismissed his appeal against the Director’s Notice.

Grounds for judicial review

10.The Applicant did not advance any grounds of judicial review in his Form 86 or in his supporting affirmation.  He stated in his affirmation that he was applying for judicial review of the decisions of the Board and the Director.  As the decision of the Director has been superseded by the Board’s Decision, it is not susceptible to judicial review: see Moshsin Ali[6] and Hafeezullah[7].

11.At the hearing, after the legal principles applicable to judicial review was explained to the Applicant, he confirmed that he had no complaint about errors of law, procedural unfairness or irrationality in the Decision.  In the absence of proper grounds or grounds with adequate particulars, the court in an application for leave to apply for judicial review could only focus its attention on these elements in its anxious scrutiny of the Decision.

Overall scrutiny

12.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board assessed his claim on the basis of the case as he asserted.  It analysed the evidence carefully, tested it against common sense and inherent probability.  It found all the injuries suffered by the Applicant, did not attain the minimum level of severity.  It further found that his enemies main goal was to extort money from him and that they were never serious in carrying their threat of death.  On the basis of authoritative and credible country of origin information (“COI”), the Board found that adequate state protection would be available to the Applicant if he returned to Bangladesh and that he could further avoid the risk of harm by internal relocation.  These are finding of facts.  Applying the law applicable to non-refoulement protection to these facts, the Board found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the applicable grounds under the USM.  These are mixed finding of fact and of the law.  Insofar as these are finding of the law, they are absolutely correct.  Insofar as these are finding of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or irrationality in the Decisions.  The Court could detect no error of law or procedural unfairness in the Decisions.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving his fears and risks. The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

Conclusion

13.For the above reasons, the Applicant’s leave application is refused.

Dated the 9^th day of October 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

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