Sabuz Mollah v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 2366/2020 [2026] HKCFI 5378 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2366 of 2020 BETWEEN
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 2 December 2020 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 20 November 2020 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 23 December 2019 refusing his application for non-refoulement protection. 2.The Applicant is a Bangladeshi national, now aged 47. Previously, he had entered Hong Kong in December 2004 using a Bangladeshi passport relating to another (the “first passport”). He overstayed and was deported back to Bangladesh after serving a two months sentence. 3.About two months later, he entered Hong Kong again on 17 December 2005 using a Bangladeshi passport, which he says is in his name. He overstayed since 1 January 2006. He made an application for assistance to the United Nations High Commissioner for Refugees (“UNHCR”), but declined to give consent for the UNHCR to release information to the Hong Kong SAR Government. He was arrested on 5 April 2006 for overstaying. Then, he raised a non-refoulement claim on 8 April 2006 (the “previous claim”). In due course, his previous 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 application was rejected by the Director. His appeal against the Director’s decision was dismissed by the Board’s Decision. 4.On 15 October 2019, he was granted leave to make a subsequent claim under section 37ZO of the Immigration Ordinance. He lodged a completed non-refoulement claim form and attended a screening interview. His subsequent claim was rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision. The Applicant’s case 5.The Applicant claims that if returned to Bangladesh, he will be at risk of harm or death from members of the Bangladesh National Party (the “BNP”) for hearing injured one of their members during a political rally in June 2004 and as a result of a false case of murder made against him by his friend’s mother. The factual background leading to the present application, the basis of the Applicant’s claim, 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. 6.In gist, his case is as follows. He was a member and general worker of the Awami League (the “AL”). He became a vice-president of the ward committee in his area. He participated in a rally organized by the AL (the “AL rally”). Members of the BNP, which was the opposing and ruling party at the time, threw a bomb and stones at the rally, injuring some AL members. The Applicant threw a brick towards the BNP members and injured one of them (the “brick throwing incident”). He became frightened and did not dare to return home. He went to live with his friend who was also a member of the AL. One day, his friend had a dispute his father and hit his father with a stick. His friend’s father died soon afterwards. His friend and his family blamed him for the death of their father and made a false case of murder against him (the “false murder case”). His friend’s mother filed a First Information Report against him at Jhinaidaah Police Station on 22 July 2004. Out of fear, the Applicant went to hide in Dhaka. A warrant for his arrest was issued by a magistrate on 16 February 2005. Then, he fled to Hong Kong on 17 December 2005 using the first passport. He paid a bribe to the immigration officers so that he could leave Bangladesh using the first passport. 7.After his repatriation, he stayed in Dhaka, obtained his second passport in his own name. He left Bangladesh on 2 December 2005 and entered Hong Kong again on 17 December 2005. In July 2016, he married a Hong Kong resident. In April 2018, he learned from his father that he had been convicted of murder of his friend’s father after a trial in his absence and sentenced to life imprisonment. He produced a copy of a Bangladeshi court order with English translation as evidence of his conviction and sentence (the “court judgment”). He fears that the prison conditions in Bangladesh are so harsh that he would not survive in prison there. 8.In about July 2018, he applied for a passport, which was probably a renewal application. He was issued a Bangladesh passport on 10 October 2018 (the “third passport”). The personal particulars are the same as those in his second passport. The finding of the Board 9.The Board considered that the Applicant’s subsequent claim is built on the same two strands as in his previous claim, ie the brick throwing incident and the false murder case. Both strands have been included in the grounds of his previous claim which had been finally determined. The Applicant adopted his submissions in the previous claim. He produced no new evidence except for the court judgment which only supports the second strand. Nevertheless, the Board considered all the evidence before it. 10.The Board found the Applicant’s use of his first passport created irreconcilable inconsistencies and contradictions among his evidence which he was unable to explain. He said he was very scared while staying in Dhaka from around the end of July 2004 to November or December 2004 because of the murder case lodged against him. Hence, he asked an agent to obtain a passport for him. Then, he received a passport relating to another person, ie his first passport, so that he could leave Bangladesh. 11.But his first passport was issued on 19 April 2004, about two months before the brick throwing incident. On the other hand, the warrant of arrest purports to have been issued on 16 February 2005. That was over a month after he had left Bangladesh (or almost three months, if he had left in November 2004 according to his supplemental claim form). The date of issue of his first report and the warrant are inconsistent with the causal order of events as he asserted. 12.The Applicant was repatriated back to Bangladesh in October 2005. He re-entered Hong Kong in December 2005 using his second passport which he said contained his true particulars. The passport purports to have been issued by the Bangladesh passport office in November 2005. 13.He told the Board that he had produced, among other things, an affidavit which purports to have been affirmed by him on 20 August 2004 in connection with his application for a dependent visa. In his supporting affidavit, he affirmed that all important respects in the personal particulars in his first passport were erroneous. But he was unable to explain why having instructed his agent to obtain the first passport to enable him to leave Bangladesh, he would have made such an affidavit four months later affirming that all the important personal particulars in the first passport were erroneous and then to use that first passport another four months later to leave Bangladesh. 14.The Board did not accept that the Applicant genuinely believed he had been sentenced to life imprisonment by a court in Bangladesh. This is because if he did, it would be incredible that he would have applied for his third passport at the Consulate General. As he had provided his true particulars when he applied for his third passport and if he had been wanted for murder for the previous 14 years and had been convicted of murder and sentenced to life imprisonment before July 2018, it is unlikely that the Consulate would not have been aware of that fact and would still have issued him with the third passport. Further, by his own admission, the Applicant was prepared to obtain and use official documents containing false material particulars, for example, his first passport. For these and for some other less compelling reasons, the Board placed no weight on the court judgment. 15.Having regard to the whole of his evidence, internal coherence of his statements, their consistency one with the other and the level of relevant detail he was able to provide, the Board came to the conclusion that the Applicant was not a credible witness and no reliance could be placed on any of his evidence and no weight should be given to the court judgment. It found there is no credible evidence that the Applicant would be at real risk of any proscribed harm if he returns to Bangladesh. 16.Applying the law applicable to the non-refoulement protection to the above finding of fact, the Board also came to the conclusion that the Applicant is not entitled to protection under any of the applicable grounds under the USM. Hence, it dismissed the Applicant’s appeal. Legal principles applicable to judicial review 17.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6]. Grounds for judicial review 18.At the hearing, after the above principles had been explained to the Applicant, he confirmed he had no complaints about errors of law, procedural unfairness and irrationality in the Decision. In his supporting affirmation, he reiterated his risks and dangers returning to Bangladesh. He said he believed the Director reached the wrong decision in assessing his claim and invited the immigration officers to tour his country and make enquiries. He said if he did not leave Pakistan, he would have been killed by his enemies. None of these assertions contain particulars as to what is wrong with the Board’s Decision in terms of error of law, procedural unfairness and irrationality. These assertions could not constitute any arguable grounds for judicial review. In the absence of particularised grounds, the Court could only focus on errors of law, procedural unfairness or irrationality in its overall scrutiny of the Board’s Decision. Conclusion 19.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 relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. 20.The Board considered the Applicant’s evidence as a whole. It tested his evidence against common sense, inherent probability, internal coherence, consistency and the level of relevant detail he was able to provide. It came to the conclusion that the Applicant was not a credible witness and no reliance could be placed on any of his evidence and no weight should be given to the court judgment. It gave detailed reasons for its finding. It was on that basis that the Board found there is no credible evidence that the Applicant would be at real risk of any proscribed harm if he returns to Bangladesh. Applying the law applicable to non-refoulement protection to the above finding of fact, the Board came to the conclusion that the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are mixed finding of facts 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 province of the Board, which the Court on a judicial review will not interfere, save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. 21.For the above reasons, the Applicant’s leave application is refused. Dated the 24th day of September 2026
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 [1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”) [3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol [4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 [5] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002366_2020_files/the_Board's_Decision.pdf [6] [2018] HKCA 524 at [14(1)] |
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