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

HCAL 2951/2019

[2025] HKCFI 1470

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2951 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 27 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, aged 36, is a national of Bangladesh. He was arrested by police for being an illegal immigrant on 3 June 2013.

4.The applicant lodged his torture claim on 6 June 2013, which was refused by the Director on 12 December 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 Awami League (“AL”) as the applicant was involved with the Bangladesh Nationalist Party (“BNP”).

6.According to the applicant, he had problems with AL including three incidents including being threatened to join AL. Details of his claim are set out at paragraphs 6-10 of the Notice of Decision dated 25 June 2018 by the Director (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 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 low intensity and frequency of past-ill treatments from the AL is indicative of a low future risk [21], state protection was available [28-34]; and internal relocation alternatives were available and reasonable [35-40].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 18 June 2019, the Board conducted an oral hearing for his appeal.

10.Having considered the evidence, the Board did not accept that the applicant faced a real chance of harm of any kind, or death, in Bangladesh for any of the reasons he claimed and the Board held the applicant’s claim failed under all applicable grounds other than Torture risk [35-38]. 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 has filed Form 86 dated 9 October 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant exhibited the Board’s Decision but again did not put forth any grounds.

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 did not believe his evidence and he wanted the Court to review the Board’s Decision.

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 Board has the power to assess his evidence and decide what evidence should be admitted. The applicant has raised no valid ground to challenge the Board’s findings. From what he told the Board, the Board was quite entitled to reach the decisions as it did.

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.