Amirul Islam Ripon v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2940/2019

[2025] HKCFI 1304

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2940 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 9 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. He appeared before the Court on 19 March 2025.

The applicant

3.The applicant is a national of Bangladesh. On 22 December 2006, the applicant was arrested by police for having overstayed in Hong Kong since 28 May 2006.

4.The applicant lodged his torture claim on 10 February 2007, which was refused by the Director on 18 November 2013. In due course, the applicant lodged his non-refoulement claim.

5.The applicant’s claim was based on his fear of being harmed or killed by members of the Bangladesh Nationalist Parliament Party (“BNP”).

6.According to the applicant, he was a member of the Chhatra (Student) League and there was a fight incident that broke out where there were approximately 22 to 24 participants including members from the BNP. They set fire to many houses, including his relatives’ homes. The applicant was attacked several times and received many threats from his enemies. Details of his claim are set out at paragraph 8 of the Notice of Decision dated 21 May 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

7.The applicant’s torture claim having failed, the Director considered his 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 assessed the applicant’s claim and dismissed it. In summary, the Director found that: there was no information that the applicant was ever bodily harmed by his enemies, and the fear that his enemies would be able to find and harm him was baseless [13-15]; state protection was available [16-20]; and internal relocation alternatives were available and reasonable [21-25].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 14 June 2019, the Board conducted an oral hearing for his appeal.

10.Having considered the evidence, the Board found that that in fact, the applicant’s evidence, as a whole, cannot confidently dismiss all of his claims about past events, and it has decided to afford him the benefit of the doubt and accept most but not all of his claims of past events [33]. Yet, the Board found it difficult to have confidence in finding that there were substantial grounds to believe that he would face a real risk of harm and the applicant’s grounds were not substantiated [45, 58, 60] In any event, having considered the evidence, internal relocation was a reasonable option [49-52]. 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

11.The applicant filed the Form 86 on 23 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 enclosed grounds which are summarized that the Board was in breach of procedural fairness: he was not provided with legal assistance; the hearing bundle was given to him shortly before the hearing and he was not notified by phone despite his request; he was confused, but he had answered all the questions from the Board; the Board having relying on inappropriate source of authorities to come to its speculation that he will be safe to return to Bangladesh.

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. Before me, the applicant said that the Board’s Decision was wrong because it did not accept his evidence.

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’s grounds under paragraph 12 are his bare assertions without any evidence in support. As he was able to answer all the questions from the Board, the hearing before the Board was fair. He is not entitled to have free legal assistance all the time throughout the proceedings. The Board has no statutory obligation to notify him of the Board’s Decision by phone. The assessment of evidence is solely within the province of the Board. These grounds are not valid to challenge the Board’s Decision.

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 appeared in person.