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

HCAL 3063/2019

[2025] HKCFI 2384

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3063 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 11 October 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. However, he was absent at the hearing on 30 April 2025. I shall deal with his application on the papers.

The applicant

3.The applicant, aged 38, is a national of Bangladesh. According to records, the applicant illegally entered Hong Kong on 4 April 2016 and surrendered to the Immigration Department on 21 April 2016. In due course, the applicant lodged his non-refoulement claim.

4.The applicant’s claim was based on his fear of being harmed or killed by members of the Awami League (“AL”) as the applicant was involved in the Bangladesh National Party (“BNP”).

5.According to the applicant, four or five AL people went to the applicant’s restaurant in 2015 and threatened the applicant not to participate in any BNP activities. The AL members then demanded 1 million Taka from him and threatened to kill him if he did not pay. He reported the incident to police as his restaurant was seriously damaged by the AL members. Police did not register his complaint. He moved to live in other places in order to avoid those people. He finally determined to flee his country for his safety. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 21 December 2018 by the Director (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 that there were no substantial grounds for believing that there would be any real and substantial risk of being harmed or killed and there was no reliable evidence that the people held any position in the AL [11-13]; that state protection was available [14-16]; and that internal relocation alternatives were available and reasonable [17].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 20 June 2019, the Board conducted an oral hearing for his appeal.

9.Having considered the evidence, the Board found that the applicant might have been a BNP supporter but did not accept that he was a BNP member of any significance and did not find his claim to be credible [66, 80]. In any event, the Board found that internal relocation was available to the applicant [81-83]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal 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 17 October 2019 for leave to apply for judicial review of the Board’s Decision. The applicant did not put forth any valid grounds for his application.

11.In his affirmation in support of his application, the applicant exhibited the Board’s Decision but again did not put forth any ground.

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 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 was unrepresented and did not appear.