Alamgir Kabir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2960/2019

[2025] HKCFI 1203

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2960 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 26 September 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.The applicant asked for a hearing. However, he was absent at the hearing on 12 March 2025. I shall deal with his application on the papers.

The applicant

3.The applicant, aged 61, is a national of Bangladesh. He arrived in Hong Kong on 22 July 2006 and was permitted to remain as a visitor. He overstayed since 29 July 2006. On 23 April 2007, he was arrested for overstaying.

4.The applicant lodged his torture claim on 5 June 2007, which was refused by the Director on 18 July 2013. The applicant lodged his non-refoulement claim by written representation dated 2 April 2013.

5.The applicant’s claim was based on his fear of being harmed or killed by members of the Bangladesh Nationalist Party (“BNP”) and the Jamaat-e-Islami Party (“JEI”) since he supported the Jatiya Party (“JP”).

6.According to the applicant, the applicant was a supporter of JP. He was invited but refused to join the BNP or the JET. He also refused to make monetary contributions to BNP. In late June 2006, he was kidnapped to an apartment where he was attacked by several people by kicks and punches throughout the night. They also hit him with blunt weapons such as hockey sticks, wooden sticks and metal rods, cutting him with long knives and choppers. He fell unconscious and was taken to a hospital. He was unable to get any assistance from the police of from his own party. He left Bangladesh for Hong Kong in July 2006. Details of his claim are set out in paragraph 9 of the Notice of Decision dated 6 July 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

7.Since the applicant had made a torture claim and his claim was refused by the Director, 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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the applicant was assaulted by unknown people [16], and the low frequency of the past ill-treatment is indicative of a small future risk of harm [17-19]; that state protection is available [20-21]; and that internal relocation alternatives are available and reasonable, if he returns to Bangladesh [22-23].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 24 May 2019, the Board conducted an oral hearing for his appeal.

10.Having considered the evidence, the Board did not accept that the applicant had any actual or perceived involvement with the JP or he was ever threatened or targeted by the people of BNP or JEI [58-59].

11.It therefore dismissed his appeal and confirmed the Director’s Decision.

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

12.The applicant filed Form 86 on 8 October 2019 for leave to apply for judicial review of the Board’s Decision. The applicant enclosed grounds, which are summarized as follows: the Board did not take into account BOR 2 risk or state acquiescence, placing too much reliance on Country of Origin Information, but failed to consider his personal background, therefore acted unreasonable and procedurally unfair and the decision was unreasonable or irrational in the scope of public law; but he did not provide any particulars to his assertions.

13.In the applicant’s affirmation in support of his application, the applicant exhibited the Board’s Decision but did not provide any further particulars on his proposed grounds.

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.

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.Those grounds under paragraph 12 are the applicant’s bare assertions without any evidence in support. They are not valid to challenge the Board’s Decision.

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 was unrepresented and did not appear.