Amin Al v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2921/2019

[2025] HKCFI 1632

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2921 OF 2019

_____________

_____________

_______________

J U D G M E N T

_______________

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/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant asked for a hearing. The applicant appeared before the Court on 26 March 2025.

The applicant

3.The applicant, aged 39, is a national of Bangladesh. He was arrested by police on 30 July 2015. He admitted that he sneaked into Hong Kong from China. On 2 August 2015, he lodged his non-refoulement claim on the basis that, if refouled, he would be killed or harmed by the Awami League (“AL”) people as he belonged to the Bangladesh Nationality Party (“BNP”),

4.According to the applicant, he had received verbal threats from the AW people many times by phone or in person. In March 2009, 12 people came to his house whereupon they vandalized his house and attacked him and his father with sticks and knives. He and his father were injured. Between 2009 and 2014, he was attacked by the AL people four times. In order to avoid those people, he had been to Singapore where he worked for his father’s friend. Whenever he returned to Bangladesh, he came across the AW people and they attacked him. He did not report the incidents to police because he assumed that they would not assist him. In September 2014, the police of Bangladesh went to his house and looked for him as he was charged with trafficking of dangerous drugs and fighting, which he believed to be false charges against him by the AL people. On 7 July 2015, he left Bangladesh for China. On 29 July 2015, he sneaked into Hong Kong by boat.

5.Details of his claim are set out at paragraph 6 of the Director’s Notice of Decision dated 28 May 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. In elaboration, the Director found that (i) the level of risk of harm that he would face was low; (ii) state protection would be available upon his return to Bangladesh; and (iii) internal relocation would be viable. [11]-[24]

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 28 May 2019, the Board conducted an oral hearing for his appeal.

9.Having considered the evidence, the Board found that his evidence was vague and he was willing to alter his evidence from time to time. As a result, the Board concluded that he was not a truthful witness and it did not accept that he was attacked by the AL people, or he was falsely charged. [49]-[67]

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 4 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. Before me, the applicant said that the Board’s Decision was not wrong.

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, for the reasons given above, found that the applicant was an incredible witness and it rejected his evidence in support of his claim.

17.There is no valid ground from the applicant to challenge the Board’s Decision.

18.There is no reason that the Court should interfere with the Board’s finding of the facts.

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

DISPOSITION

20.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.