Rajib Hossain v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2228/2019

[2025] HKCFI 504

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2228 OF 2019

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.The applicant, aged 41, applies for leave to apply for judicial review of the Decision dated 12 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. He appeared before the Court on 9 December 2024.

The applicant

3.The applicant is a national of Bangladesh. The applicant arrived in Hong Kong on 8 July 2006 on the strength of his Bangladeshi passport and was permitted to remain as a visitor until 22 July 2006. He overstayed since 23 July 2006 and was arrested by police for overstaying on 9 December 2006.

4.The applicant had previously lodged a torture claim on 10 December 2006, which was refused by the Director on 15 January 2014. Subsequently, the applicant lodged his non-refoulement claim on 10 December 2006.

5.The applicant’s claim was based on his fear of being harmed or killed by (1) Awami League (“AL”) extortionists since his father refused to pay money to the extortionists; and (2) from the father’s loan creditor and his son, since he was unable to repay loans.

6.According to the applicant, from 2004 to 2006, he assisted his father to run a shop. Some extortionists came to demand money from his father. His father acceded to their request. In mid-2006, another group of extortionists came to the shop for money. This time, his father refused to pay whereupon they assaulted his father and him. His left knee was cut by knife and he had to receive one stitch for the wound. His father closed the shop in May 2006. His father paid a friend money for sending him to Hong Kong in July 2006. His father remained in Bangladesh and borrowed money from another creditor, KH, to run his business. He failed and was unable to repay the loan. The creditor threatened to kill his father if he was unable to pay. His father passed away because of cancer and KH, the creditor had also passed away. His son took over the lending business. The applicant is afraid that if he returns to his country, the creditor’s son will demand him to pay his father’s debt. At present, the applicant had married a Hong Kong resident in Hong Kong and they had children from his wife’s previous marriage and their marriage.

7.Details of his claim are set out at paragraph 8 of the Notice of Decision dated 6 December 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

8.The applicant had applied for torture claim and the Director rejected his application. He did not appeal. Therefore torture risk was not considered in his non-refoulement claim.

9.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”); and

(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”).

10.By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed his claim. In summary, the Director found that: the low intensity and frequency of ill-treatments from the AL extortionists and the loan creditor and his son indicates the future risk of being harmed or killed is unlikely to materialize [15]; state protection was available [19]; and internal relocation alternatives were available and reasonable [24].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board. On 10 April 2019, the Board conducted an oral hearing for his appeal, during which the applicant elected to give evidence on two problems. One related to debts he owed and the other relating to a money-lender. He did not refer or mention the AL extortion demands noted in his Supplementary Claim Form and the Director’s Decision. The Board reminded the applicant that there were significant inconsistencies between his account to the Director and to the Board.

12.Having considered the evidence, the Board accepted that he had been in a relationship in Hong Kong for at least four years with a woman he married that was a permanent resident of Hong Kong and together they had one child [50]; the Board formed the view that the applicant was not a reliable witness and his claims were not credible and had been fabricated to create a claim for protection [41-43, 57, 62], and the Board does not accept that there was a real risk of harm if he returned to Bangladesh [58, 62, 65]. In conclusion, the Board dismissed his appeal and confirmed the Director’s Decision.

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

13.The applicant has filed Form 86 dated 6 August 2019 for leave to apply for judicial review of the Board’s Decision.

14.In the applicant’s affirmation in support of his application, the applicant exhibited a letter which included grounds which are summarized as follows: his bare assertion that both he Director and Board had no practical knowledge of his claim without any particulars or supporting documents; he married a Hong Kong resident and now has a baby that was born in Hong Kong; and he applied for a dependent visa.

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 that the Board was wrong in its decisions because it did not accept his evidence.

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. There is no valid ground from the applicant to challenge the Board’s Decision. The applicant’s complaint under paragraph 16 is not a valid ground to challenge the Board’s Decision.

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

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

DISPOSITION

21.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.