Mozammal Haque v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2586/2019

[2025] HKCFI 924

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2586 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 2 September 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 26 February 2025. I shall deal with his application on the papers.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant, aged 34, is a national of Bangladesh. He came to Hong Kong from China illegally on 26 January 2015 and was arrested by police. He lodged a non-refoulement claim by written representation on the basis that, if refouled, he will be harmed or killed by his enemies from the Awami League (“AL”).

5.According to the applicant, he was a member of the Jamaat-e-Islam Party. The AL members asked him to join them. He refused. On a number of occasions, he was involved in fights between the parties and he was injured with bruises. He had sought shelters elsewhere. However, the AL people were still looking for him. He therefore left his country for Hong Kong.

6.Details of his claim are set out at paragraph 6 of the Notice of Decision dated 30 October 2018 (“the Director’s Decision”).

The Director’s Decisions

7.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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim for the reasons that (i) from his past experience, the risk of being harmed if he returns to Bangladesh is unlikely; (ii) state protection will be available; and (iii) internal relocation is viable. [12]-[17]

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 5 July 2019, the Board conducted an oral hearing for his appeal.

10.Having considered the evidence, the Board found that (i) there was no basis for the applicant’s fear as there were 2 rival groups fighting together, but he was not their target [37] & [41]; (ii) the threats were just empty threats [44]; and (iii) there was no evidence to support his applicable risks as claimed [48]-[54]; and (iv) internal relocation is viable. [55]-[60] .

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

11.The applicant has filed Form 86 dated 5 September 2019 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

13.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).

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

15.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.”

16.The applicant has raised no valid ground to challenge the Board’s findings.

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

DISPOSITION

18.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.