Sultan Tipu v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2520/2019

[2025] HKCFI 795

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2520 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 7 August 2019 of the Torture Claims Appeal Board 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 22 January 2025. I shall deal with his application on the papers.

The applicant

3.The applicant, aged 57, is a national of Bangladesh. On 19 September 2015, the applicant entered Hong Kong on the strength of his Bangladeshi passport but did not depart and overstayed since 4 October 2025. He surrendered to the Immigration Department on 5 October 2015. The applicant lodged a non-refoulement claim on 3 October 2016. The applicant’s claim was based on his fear of being harmed or killed by his creditors and by members of the Awami League (“AL”) as the applicant was a member of the Bangladesh Nationalist Party (“BNP”).

4.According to the applicant, he had three incidents. First, he had witnessed an incident where the AL attacked protestors which BNP supported, but he was not harmed. Second, he was an active worker in BNP but did not hold any post, and claimed that AL members burnt down his shop. Third, he borrowed money from creditors who were AL members and he was attacked for being unable to repay the loan. Details of his claim are set out in paragraphs 6 of the Notice of Decision dated 10 September 2021 by the Director (the “Director’s Decision”).

The Director’s Decisions

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

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

b.  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”);

c.  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

d.  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”).

6.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 past ill-treatment was indicative of a small future risk of harm [14-15]; state protection was available [15-19]; and internal relocation alternatives were available and reasonable [20-22].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 9 July 2019, the Board conducted an oral hearing for his appeal.

8.Having considered the evidence, the Board found that he had made up his political claims and fabricated his claims. [60]-[92] Furthermore, the Board found that his evidence was not credible [96], though the Board accepted that he owed money to a number of creditors and that he was assaulted [110]. However, on the applicant’s admission that he could pay off his debts, the Board rejected the rest of his claims, both individually and cumulatively. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.

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

9.The applicant has filed Form 86 dated 30 August 2019 for leave to apply for judicial review of the Board’s Decision.

10.In his affirmation in support of his application, the applicant enclosed grounds which are summarized as follows: the Board was in breach of procedural fairness and the decision was unreasonable or irrational in the public law sense. The applicant also wrote of his fear of being refouled and risks.

DISCUSSION

11.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).

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

13.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.”

14.Those grounds under paragraph 10 are the applicant’s bare assertions without any evidence in support. They are not valid to challenge the Board’s Decision.

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

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

DISPOSITION

17.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.