Mollah Md Ibrahim v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2671/2024

[2025] HKCFI 2273

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2671 OF 2024

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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 20 December 2024 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. However, he was absent at the hearing on 14 April 2025. I shall deal with his application on the papers.

The applicant

3.The applicant, aged 44, is a national of Bangladesh. He was arrested by police on 21 July 2024. He admitted having sneaked into Hong Kong illegally and was referred to the Immigration Department. By written signification, he lodged a non-refoulement claim. He claimed that, if refouled, he will be harmed or killed by Mr Mojibar Rahman (Rahman) and his people of the Awami League (“AL”) because he supported the Bangladesh National Party (“BNP”). He was also afraid of being arrested in Bangladesh because of a case filed against him.

4.According to the applicant, he was a supporter of the BNP whereas the AL was the rival party. Starting from 2014, he was troubled by the AL people by asking him to join the AL. He was attacked 8 times by fists, kicks and weapons such as hockey sticks or wooden sticks. Those people also sent him death threats over the phone. He had to move to various countries in order to avoid them. He finally came to Hong Kong.

5.Details of his claim are set out at paragraph 6 of the Notice of Decision dated 3 October 2024 (“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 there was no evidence to believe that there will be a foreseeable and real risk of harm if he returns to Bangladesh; that his behaviours are inconsistent with someone who genuinely fears being arrested; that state protection will be available; and internal relocation is viable. [13]-[30]

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 6 December 2024, the Board conducted an oral hearing for his appeal.

9.Having considered the evidence, the Board found:

“32. In material aspects of his case, the information/evidence given by the Appellant is not consistent and not believable. I have no doubt whatsoever that he is not an honest witness. The claimed risk is based on the information/evidence he asserted. Bust such information/evidence is not reliable. There is simply no credible information/evidence to support the claimed risk. Hence, I dismiss his appeal.”

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

10.The applicant has filed Form 86 dated 31 December 2024 for leave to apply for judicial review of the Board’s Decision.

11.In support of his application, the applicant has raised the grounds below.

(1)  He believed that the Board’s Decision is wrong.

(2)  His right to life must be protected.

(3)  The adjudicator acted unreasonably and was procedurally unfair by placing too much reliance of the country of origin information without taking into account his personal background; he has also unreasonably required him to respond to his questions; and he did not accept his evidence.

(4)  The Board was unreasonable not to accept his evidence.

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 grounds under paragraph 11 are the applicant’s bare assertions or opinions without any evidence in support. They are not valid to challenge the Board’s Decision.

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 was unrepresented and did not appear.