Shamim Mohammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3033/2019

[2025] HKCFI 1857

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3033 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 27 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. He appeared before the Court on 25 April 2025.

The applicant

3.The applicant, aged 30, is a national of Bangladesh. He entered Hong Kong illegally by sea and was arrested by police. He was referred to the Immigration Department on 8 September 2015. He lodged a non-refoulement claim by written signification on the basis that, if refouled, he will be harmed or killed by his enemies.

4.According to the applicant, he was a supporter of the Bangladesh Nationalist Party (“BNP”) and the rival party was the Awarmi League (“AL”). When he was studying in college, his rival enemies harassed him by following him and passed threats on him. He had to live in various places in order to avoid them. On one occasion, his enemies, including the leaders of the AL of the district attacked him with fists, kicks, and wooden sticks. He was seriously injured in his head with a cutting at its back, arms and legs. He was admitted in hospital for 5 days and only recovered after 1 month. On the advice of his friend, he left Bangladesh for Hong Kong.

5.Details of his claim are set out at paragraph 6 of the Notice of Decision dated 9 October 2018 (“the Director’s Decision”).

The Director’s Decisions

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 experience in Bangladesh showed that his enemies did not have the intention of seriously harming him or killing him; that state protection is available to him, if he returns to Bangladesh; and that internal relocation is viable. [11]-[22]

The Board’s Decisions

8.The applicant appealed the Director’s Decision to the Board. On 9 September 2019, the Board conducted an oral hearing for his appeal.

9.Having considered the evidence, the Board found that the applicant failed to substantiate his case on any of the applicable risks and it agreed with the findings of the Director and confirmed the Director’s Decision.

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

10.The applicant has filed Form 86 dated 15 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 reason to challenge the Board’s Decision.

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 did not accept his evidence.

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 Board has the discretion to decide whether his evidence was credible. The applicant therefore 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.