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

HCAL 2934/2019

[2025] HKCFI 1633

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2934 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 3 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. 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 41, is a national of Bangladesh. He was arrested by police on 7 April 2015. He admitted that he sneaked into Hong Kong on the same day. By written representation, he lodged a non-refoulement that, if refouled, he will be harmed or killed by people from Awani Leagues (“AL”), his enemies.

4.According to the applicant, he was the vice-president of the Bangladesh Nationalist Party (“BNP”) in his village. The ruling party in Bangladesh was the AL. The AL people tried to persuade him to quit BNP and join AL. He refused. The AL people went to his shop where they ransacked it and took him to another place where they assaulted him seriously. He fell unconscious and was taken to hospital. He was admitted for 23 days. He had lost 3 teeth and received 43 injections. He reported the matter to police, which took no action. His brother-in-law assisted him to leave Bangladesh for Hong Kong.

5.Details of his claim are set out at paragraph 6 of the Notice of Decision dated 8 January 2019 (“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 his risk of being harmed or killed is low, taking into consideration that there was no evidence that the state was involved and the incidents of him being harmed in Bangladesh was a long time ago and his enemies should have no interest in him; that state protection will be available and internal alternative is viable. [11]-[27]

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 6 and 13 August 2019, the Board conducted an oral hearing for his appeal.

9.Having considered the evidence, the Board found that it did not accept that he had been harmed by his enemies in Bangladesh or that he will be tortured if he returns to Bangladesh. The Board therefore found that the applicant failed to show that, because of his political opinion, he will be at risk of harm, either by the authorities, or the AL in general. [59]-[61[ & [65].

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 8 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 did not raise any specific ground to challenge the Board’s Decision.

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 applicant has raised no valid ground 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.