Dokandar Sajib v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3121/2019

[2025] HKCFI 1848

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3121 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 10 October 2019 of the Torture Claims Appeal Board dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant asked for a hearing. He appeared before the Court on 25 April 2025.

The applicant

3.The applicant, aged 37, is a national of Bangladesh. He came to Hong Kong illegally by boat on 22 April 2013. On 24 April 2013, he was arrested by police. He lodged a torture claim on 12 July 2013, but withdrew it later. On 30 January 2014, he lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by the Awami League (“the AL”) because he was a student worker of Bangladesh Chatra Shibir (“BCS”) which is the student branch of Bangladesh Jamaat-e-Islami since around 2009. Although he was not a member of BCS, he had joined their discussions on political issues. The AL was the ruling party, he is afraid that they may harm or kill him if he returns to Bangladesh.

4.Details of his claim are set out at paragraph 10 of the Notice of Decision dated 24 May 2018 (“the Director’s Decision”).

The Director’s Decisions

5.As the Director had considered the applicant’s claim in relation to the torture claim, the Director considered the other applicable 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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the applicant’s claim was speculative as he had never been ill-treated by the AL people when he was in Bangladesh; that state protection will be available; and that internal relocation is viable if he returns to Bangladesh. [15]-[31]

The Board’s Decisions

7.The applicant appealed the Director’s Decision to the Board. On 12 March 2019, the Board conducted an oral hearing for his appeal.

8.Having considered the evidence, the Board found that the applicant’s evidence before it vague and unreliable since he did not respond to the Board’s queries. As a result, the Board did not accept his alleged facts in support of his claim. It dismissed his appeal and confirmed the Director’s Decision. [35]-[39] & [40]-[42]

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

9.The applicant has filed Form 86 dated 22 October 2019 for leave to apply for judicial review of the Board’s Decision.

10.In his affirmation in support of his application, the applicant has raised that he was not given any chance to make submissions to the Board and the Board had relied on the source of news which is not officially recognized or hearsay; and on outdated authorities, resulting in it making speculation that it is safe for him to return to Bangladesh.

DISCUSSION

11.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).

12.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 he had married a Hong Kong resident and had applied for a dependent’s visa, but the result was not yet known. He complained that the Board did not accept his evidence.

13.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.”

14.Those grounds under paragraph 10 are either not true as the Board had asked him questions, but he did not respond to them; or they are only his bare assertions without any evidence in support. They are not valid to challenge the Board’s findings. His complaint that the Board did not accept his evidence is not a valid reason because the Board has the discretion on the credibility of his evidence.

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

DISPOSITION

16.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.