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

HCAL 2353/2019

[2025] HKCFI 348

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2353 OF 2019

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 19 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant asked for a hearing. However, he was absent at the hearing on 30 December 2024. I shall deal with his application on paper.

The applicant

3.The applicant, aged 39, is a national of Bangladesh. He entered Hong Kong illegally on 18 July 2015 and he surrendered to the Immigration Department on 20 July 2015. The applicant made a non-refoulement claim on 24 March 2016. The claim was made on the basis that, if refouled, he would be harmed or even killed by members of Awami League (“AL”) because of his affiliation to the Bangladesh Nationalist Party (“BNP”).

4.According to the applicant, he became a BNP member in 2009 and was elected as the Joint Secretary of the BNP college committee in 2011. Since then, he started to have regular fights and arguments with AL student wing members. One day in mid-2013, while the applicant was alone in his father’s shop, he was threatened by AL student wing members to stop organising activities for BNP, failing which he would be killed. A month later, they came again to look for him at the shop, but he was away. In February 2014, during the orientation of the college, the applicant was involved in a fight between BNP and AL student wing members. Subsequently, a fighting case was filed against the applicant, for which the police had attended his home 5-6 times between February 2014 and April 2015 during his absence. To avoid the continuous harassment from the police, the applicant and his father travelled to Nepal via India in April 2015, but returned to Bangladesh shortly due to earthquake. Although the police continued visiting the applicant’s home, he managed to escape every time through alert from his friends. Eventually, he left Bangladesh for China on 6 July 2015 and then sneaked into Hong Kong from Shenzhen on 18 July 2015.

5.The applicant had maintained contact with his mother and siblings. He was informed that the police were still looking for him while the AL members were also seeking his whereabouts. He was of the view that he could not seek protection from the police because they only followed the instructions of the ruling AL. Meanwhile, he also considered internal relocation not viable.

6.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 27 December 2018 (“the Director’s Decision”).

The Director’s Decision

7.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”); and

d.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that (i) the nature and low intensity of past ill-treatment from AL members indicated that they had no real intention to seriously harm or kill the applicant [12]-[13]; (ii) the applicant would unlikely be personally targeted by AL given his grass-root involvement in BNP [14]; (iii) the AL members concerned were not as influential as he claimed [14]; (iv) the conduct of the applicant was inconsistent with that of someone genuinely in fear [15]; (v) there was no indication that the Bangladeshi authorities had any adverse interest towards the applicant and that the police were looking for him merely for investigation of the fighting case [16]; (vi) state protection would be available [17]-[21] and (vii) internal relocation would be viable [22]-[24].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 6 June 2019, the Board conducted an oral hearing.

10.The Board found the applicant’s delay in seeking non-refoulement protection detrimental to his credibility [23]-[24]. Upon considering the evidence, the Board did not accept that the applicant (i) was an active political leader [27]-[33]; (ii) had been ill-treated by AL [34]-[36] and (iii) had been adversely targeted by AL [37]-[42].

11.The Board found the applicant not credible and rejected his account of events [43]. Based on such findings and given that there was no indication that the AL members concerned were acting in any official capacity while the claimed past ill-treatments also failed to reach the requisite level of severity, the Board rejected the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [47]-[61], [74]-[94], [102]-[104]. In any event, state protection and internal relocation would also be available according to the country of origin information [62]-[73], [95]-[101].

12.The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

Application for leave to apply for judicial review of the Board’s Decision

13.The applicant has filed Form 86 dated 15 August 2019 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

15.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

17.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

18.The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded.

19.There is no valid ground from the applicant to challenge the Board’s Decision.

20.There is no reason that the Court should interfere with the Board’s finding of the facts.

21.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

22.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

The applicant was unrepresented and did not appear.