Rana Sohel v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2576/2019

[2025] HKCFI 923

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2576 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 applies for leave to apply for judicial review of the Decision dated 15 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. He appeared before the Court on 26 February 2025.

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 was arrested by police on 14 May 2014 and he admitted that he had sneaked from China into Hong Kong illegally. He raised his non-refoulement claim on 17 May 2014 on the basis that, if refouled, he will be harmed or killed by the Awami League (“AL”) due to political dispute as he was a member of Bangladesh Nationalist Party (“BNP”).

5.According to the applicant, in 2009, the AL people assaulted his father, who was also a BNP member. In 2012, the AL people threatened him to abandon BNP. On 30 August 2012, the AL people used long knives to attack him and his leg was injured. They later threatened him by phone calls, saying that if he did not abandon BNP, they would kill him. On 14 May 2014, he sneaked into Hong Kong.

6.Details of his claim are set out at paragraph 5 of the Notice of Decision dated 7 September 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 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. The Director found that (i) his experience in Bangladesh is indicative of low risk; (ii) the information shows that his enemies did not have real intention to kill him; (iii) his problem with his enemies was a kind of political dispute; (iv) his behaviour was not consistent with his claimed fear; (v) state protection will be available; and (vi) internal relocation is viable. [10]-[23]

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 25 March 2019, the Board conducted an oral hearing for his appeal.

10.Having considered the evidence, the Board stated:

“106. Despite ample time to do so, the Appellant provided no objective evidence of his uncle’s death, such as a copy of his death certificate. His failure to produce evidence of this nature, which one might reasonably expect would have been reasonably available to him, adds to my cumulative concerns about the credibility of his claim.

108. … Overall, I find the Appellant’s claim fail to satisfy any of the recognized markers of credibility discussed above.”

11.For the reasons above, the Board dismissed his appeal and confirmed the Director’s Decision. [124]

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

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

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

DISCUSSION

14.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).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant complained that the Board did not accept his evidence and he asked the Court to review it.

16.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.”

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

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

DISPOSITION

19.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.