Taher H M Abu v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2913/2019

[2025] HKCFI 1537

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2913 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 12 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 26 March 2025.

The applicant

3.The applicant, aged 53, is a national of Bangladesh. He was arrested by police on 2 December 2014. He admitted having sneaked into Hong Kong by boat. By written representation, he lodged a non-refoulement claim on the ground that, if refuledl, he will be harmed or killed by his enemies, who are the Awami League (“AL”) people because he is a supporter of the Bangladesh Nationalist Party (“BNP”).

4.According to the applicant, in August 2014, more than 1000 AL people attacked his party members in a BNP party gathering. He was attacked with long knives, wooden sticks and metal rods. He fell unconscious and was taken to hospital. He had to hide himself up by staying in his uncle’s house in Dhaka. He then came to Hong Kong.

5.Details of his claim are set out at paragraph 6 of the Notice of Decision dated 29 September 2018 (“the Director’s Decision”).

The Director’s Decision

6.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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that low intensity and frequency of the ill-treatment in the past is indicative of a small future risk; that state protection will be available if he returns to Bangladesh; and that internal relocation is viable. [14]-[24]

The Board’s Decision

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

9.Having considered the evidence, the Board found that the applicant was just an ordinary member of BNP and he will not be facing any real risk of harm if he returns to Bangladesh as there was no evidence to show that his enemies had any interest in him. [52], [54]& [56]

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

10.The applicant has filed Form 86 dated 3 October 2019 for leave to apply for judicial review of the Board’s Decision.

11.He has attached a statement of grounds to Form 86 in support of his application. Those grounds can be summarized as the Board was unfair as it did not take into account of BOR 2 risk; it had place too much weight on the country of origin information; it conducted the hearing in an unfair manner, requiring him to answer questions that he was not able to respond.

DISCUSSION

12.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).

13.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 was not wrong in its decisions. In the circumstances, those grounds under paragraph 11 have become irrelevant.

14.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.”

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

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

DISPOSITION

17.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.