Nobi Md Nur v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 2363/2019 on BabelCite. This High Court CFI judgment was delivered on 11 February 2025.
1. The applicant applies for leave to apply for judicial review of the Decision dated 7 August 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”).
Cites 3 cases
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HCAL 2363/2019 [2025] HKCFI 349 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2363 OF 2019 _____________
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_______________ J U D G M E N T _______________ THE APPLICATION 1.The applicant applies for leave to apply for judicial review of the Decision dated 7 August 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. He appeared before the Court on 30 December 2024. The applicant 3.The applicant, aged 45, is a national of Bangladesh. He entered Hong Kong illegally on 5 January 2016 and was arrested by the police on the same day. The applicant made a non-refoulement claim on 9 January 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 involvement in Bangladesh Nationalist Party (“BNP”). 4.According to the applicant, he became a BNP member in around 2008. Since early 2014, he started receiving verbal threats from AL members. Between early 2015 and mid-2015, the applicant’s shop was vandalised by AL members thrice and he suffered minor injuries on two occasions. Although the matter had been reported to the police once, no action was taken by them. Thereafter, the applicant relocated to the home of a distant relative, where he stayed for a few months. In November 2015, he went to India, but returned to Bangladesh later in the same month because he failed to seek asylum there. Eventually, the applicant left Bangladesh for China on 2 January 2016 and then sneaked into Hong Kong from Shenzhen on 5 January 2016. 5.The applicant had maintained contact with his family and was informed that AL members were still after him. The applicant was of the view that he could not seek protection from the police because they were corrupt and only worked for the ruling AL. He also had no confidence towards the judiciary in Bangladesh. The applicant considered internal relocation not viable as well because AL members would be able to find him through their powerful network. 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:
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) there was no indication that AL members would continue pursuing the applicant given his grass-root involvement in BNP and the lapse of time [12a]; (ii) the applicant’s delay in leaving Bangladesh showed that the risk of harm was not that imminent [12b]; (iii) there was nothing to suggest that the AL members concerned were as powerful as the applicant claimed [12c]; (iv) the absence or low intensity and frequency of past ill-treatment from the AL members indicated a small future risk of harm upon his return to Bangladesh [12d]; (v) there was no evidence to show that the Bangladeshi authorities had any adverse interest towards the applicant [12d]; (vi) state protection would be available [13] and (vii) internal relocation would be viable [14]. The Board’s Decision 9.The applicant appealed the Director’s Decision to the Board. On 27 June 2019, the Board conducted an oral hearing. 10.The Board found the applicant’s evidence regarding his association with BNP inconsistent and lacked details [48]-[50]. There were also contradictions in various aspects of his evidence including (i) the number of times his shop was vandalised; (ii) the place he stayed after relocation from his hometown and its duration and (iii) the period he ran his business [52]-[53]. 11.The Board accepted that the applicant may have voted for BNP in the past, but did not find him to be a member or active supporter of BNP. As such, his claimed encounters with the AL members and the problems he experienced with them were rejected. The Board also did not accept that the applicant’s travel to India was for the purpose to avoid the AL members or that he was still being sought after his departure from Bangladesh [51], [54]-[55]. 12.Based on such findings, the Board found the applicant would not face any real risk of harm upon his return to Bangladesh [57] and rejected his claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk [12]-[28], [58]-[61]. 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 said that he appeared before the Board. There was an interpreter, who did not translate all he said to the Board because he had spoken for 10 minutes, but the interpreter spoke for 2 minutes. The hearing bundle was in English and nobody translated for him. 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. Before me, the applicant said he was not sure if the Board’s Decision was wrong. But he wants to stay in Hong Kong for a longer time. 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.As to the grounds in support of his application, he should have complained to the adjudicator against the interpreter. However, in view of his submission before this Court, his complaint against the interpreter is of no moment. The applicant cannot complain that he did not have translation service for him as he is not entitled to the service at any stage of the proceedings[1]. Therefore, the applicant has failed to raise any valid ground 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 appeared in person. [1] The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 held:
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