Das Sanjoy v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3010/2019

[2025] HKCFI 2362

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3010 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 3 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. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.]

The applicant

3.The applicant, aged 40, is a national of Bangladesh. He was arrested by police on 26 August 2015 and he admitted having sneaked into Hong Kong by sea illegally. He lodged non-refoulement claim by written representation on 29 August 2015 on the basis that, if refouled, he will be harmed or killed by Sumon and an unknown man (“his enemies”) who supported the Awami league (“AL”) while he was a Hindu who supported the Bangladesh Nationalist Party (“BNP”).

4.According to the applicant, he met his enemies in the market in 2015. They had political arguments and in the heat of it, they threatened to kill him. He was very scared and he hid himself up. But he did not report the matter to police. On 15 July 2015, he was issued with a visa to enter China and in August he went to China from where he came to Hong Kong.

5.Details of his claim are set out at paragraph 6 of the Notice of Decision dated 25 October 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) from his experience in Bangladesh, his risk of being harm if he returned to his country is very low; (ii) there was no evidence to show that he may not have state protection; and (iii) internal relocation is viable. [12]-[23]

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 19 June 2019, the Board conducted an oral hearing for his appeal.

9.Having considered the evidence, the Board found that the applicant’s evidence unconvincing [67]; his allegation that he joined the BNP was because this party did not attack Hindus, but he was proved to be wrong by the country of origin information (“COI”) [68]; the Board did not accept that he was singled out for attack because he was a Hindu supporter of the BNP [75]; and he was not subjected to the level of threat as he alleged [87].

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.

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

(1)  The hearing bundle was given to him shortly before the hearing and no interpretation service was provided. But he had answered all questions from the Board.

(2)  The Board had relied on the source of news not officially recognized or it was simply hearsay. Its finding that it is safe for him to return to his country is only its speculation.

(3)  BOR 2 risk was not properly assessed and considered.

(4)  The Board had not been to his country to understand the situation there. This is unfair.

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 he did not consider the Board was wrong. Nevertheless, he asked me to review the Board’s Decision.

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.Those grounds under paragraph 11 are not valid to challenge the Board’s Decision. He was not entitled to interpretation service all the time throughout the proceedings[1]. The Board could rely on the COI without going to his country to understand the situation in Bangladesh. The other grounds are his bare assertions only. They are irrelevant in view of the applicant’s submission before this Court.

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.