Anowar Hossain v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2884/2019

[2025] HKCFI 1630

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2884 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 11 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 26 March 2025. I shall deal with his application on the papers.

The applicant

3.The applicant, aged 39, is a national of Bangladesh. He was arrested by police on 31 July 2007 and he admitted that he had sneaked into Hong Kong by boat from Shenzhen on 27 July 2007. He lodged his non-refoulement claim by written signification, claiming that, if refouled, he will be harmed or killed Fira Hossain, Shamim, Khoken, Mukori, and Masud (“the 5 suspects”) because he had disclosed their names to police for a suspect murder case in 2007.

4.According to the applicant, he had disclosed the 5 suspects to police in an investigation into the death of a 5-year old girl, whose body was lying outside his father’s shop. The 5 suspects attacked him with knives and chopper in his father’s shop. He had received two cuts on his head and one cut on his left arm. He was admitted to hospital. The 5 suspects attempted to attack him again at the hospital. They were scared off by his brother who was nearby. Through an agent, he fled to China and then to Hong Kong.

5.Details of his claim are set out at paragraph 9 of the Notice of Decision dated 7 January 2019 (“the Director’s Decision”).

The Director’s Decision

6.As the Director had rejected his torture claim before, 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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that his experience in Bangladesh is indicative of a small future risk of harm upon his return to Bangladesh; that state protection will be available; and internal relocation will be viable. [14]-[24]

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 13 August 2019, the Board conducted an oral hearing for his appeal.

9.Having considered the evidence, the Board had made the findings as follows:

“50. In light of the above, the Board finds the Appellant is not a witness of truth and his claim that he gave to police the names of the people he suspected were involved in a murder, not credible. As such, it does not accept that the Appellant was physically attacked by these people in his father’s shop. …”

10.For those reasons, the Board 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 2 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 said that his enemies are strong in his country and he now has a son, having married a Chinese woman in Hong Kong and he does not want to be separate from his son.

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.

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 reasons raised under paragraph 12 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 was unrepresented and did not appear.