Sheikh Jamal v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3015/2019

[2025] HKCFI 2269

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3015 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 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. However, he was absent at the hearing on 14 April 2025. I shall deal with his application on paper.

The applicant

3.The applicant, aged 50, is a national of Bangladesh. He was arrested by police on 9 November 2015 and admitted that he had sneaked into Hong Kong illegally by boat from the Mainland. He lodged his non-refoulement claim by written signification dated 12 November 2015 on the basis that, if refouled, he will be harmed of killed by members of the Awami League (“AL”).

4.According to the applicant, he joined the Bangladesh Nationalist Party (“BNP”) in 2007 as a member and he ran a business of imitation jewellery shop in Dhaka. Between 2013 and 2014, the AL members came to his shop to demand money from time to time, on the average, 7 to 8 times per month. He refused to pay whereupon they punched his head resulting in serious bleeding and cut his leg with knife. He had reported the incidents to police, which took no action. They had also vandalized his shop. He had to close his shop eventually. He left his country and came to Hong Kong.

5.Details of his claim are set out at paragraph 7 of the Notice of Decision dated 18 December 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 Board’s Decision

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

9.Having considered the evidence [40]-[56], the Board found that the applicant was not a witness of truth and that he had fabricated claims in relation to his political opinion and the problems he allegedly experienced as a result [43]; the Board did not accept his claim regarding his membership of the BNP [44]; his evidence given to the immigration officer and before the Board were in conflict [45]; the Board did not accept that he was a member of the BNP [46]; and consequently, the Board considered that there would not be any real risk of the proscribed forms of harm to him should he return to Bangladesh [56].

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

10.The applicant has filed Form 86 dated 14 October 2019 for leave to apply for judicial review of the Board’s Decision. He has not stated his grounds for the relief he sought.

11.In his affirmation in support of his application, the applicant has not raised any specific ground 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.

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, for the reasons given above, found that the applicant is not a credible witness and it rejected his evidence in support of his claim.

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

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

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

DISPOSITION

19.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.