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

HCAL 2964/2019

[2025] HKCFI 1622

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2964 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 4 September 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 26 March 2025.

The applicant

3.The applicant, aged 29, is a national of Bangladesh. He sneaked into Hong Kong on 15 August 2018 and surrendered to the Immigration Department on 23 August 2018. A removal order was issued against him. He lodged a non-refoulement claim by 2 written representations dated 28 November and 3 December 2018 respectively, claiming that if refouled, he will be harmed or killed by some members of the Awami League (AL) (“his enemies”), as he was a member of the Bangladesh Nationalist Party (“BNP”).

4.According to the applicant, he was a supporter of the BNP. In about 2018, he was approached by the AL members who told him to quit BNP and join AL. They also asked him to tout other people to join AL. He refused, whereupon they assaulted him for a few minutes. They threatened to kill him. He was scared and moved to live in various places of his relatives and friends in order to avoid his enemies. However, he discovered that he was being followed in various places. He reported the matters to police, which did not take any action. Therefore, he came to Hong Kong.

5.Details of his story are set out in paragraph 6 of the Notice of Decision dated 29 April 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 the intensity and frequency of ill-treatment in Bangladesh showed that the risk of him being harmed is low if he returns to Bangladesh; that state protection is available and that internal relocation is viable. [11]-[22]

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 16 August 2019, the Board conducted an oral hearing for his appeal.

9.Having considered the evidence [39]-[65], the Board found that there was some exaggerations in his evidence [66]; that he failed to show that the attack was instigated by the state or the state agent [82]; that he will not be at risk of any harm if he returns to Bangladesh [84]. For those reasons, the Board dismissed his claim on the applicable risks.

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

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

11.In his affirmation in support of his application, the applicant did not raise any specific grounds to challenge the Board’s Decision. However, he had attached a statement of grounds to Form 86, which can be summarized that the Board had not taken into account of BOR 2 risk; it conducted the hearing in an unfair manner and it had placed too much weight on the country of origin information without considering his personal situation; that it was unfair because it did not consider his evidence and personal situation, unreasonably demanded him to answer questions that he was unable to answer.

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’s Decision was not wrong and he would not maintain his objections attached to Form 86. 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.