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

HCAL 3065/2019

[2025] HKCFI 2988

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3065 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

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 (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.The applicant asked for a hearing.  Before the Court fixes the case for hearing, the applicant applied for withdrawal of his application.  There is no evidence that he made the application other than of his own volition and there is nothing outstanding in this action.  I approve his application and dismiss his application.  The following information shows that the applicant’s application is devoid of merit.

The applicant

3.The applicant, aged 48, is a national of Bangladesh.  He is an illegal immigration, who has lodged non-refoulement with the Director of Immigration Department (“the Director”).  His claim is on the basis that, if refouled, he will be harmed or killed by his 2 creditors from whom he had borrowed 2 loans in 2001and he was unable to repay his debts.  The creditors had assaulted him and continued to press him for the debts.  They were associated with the Awami League (“AL”).  He had to leave his country for Hong Kong in order to avoid them.

4.The applicant had lodged a torture claim, which was rejected by the Director on 11 November 2013.  He did not appeal.  Then he raised his non-refoulment claim of the other applicable risks.

5.Details of his claim are set out at paragraphs [9]-[16] of the Board’s Decision.

The Director’s Decision

6.Other than the Torture risk, the Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  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

c.  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.  On 22 June 2018, the Director rejected the applicant’s non-refoulement claim for the reason that his claim was unsubstantiated (“the Director’s Decision”).  He appealed to the Board.

The Board’s Decision

8.On 17 June 2019, the Board conducted an oral hearing for his appeal.  The Board had made enquiries on the facts of the claim.

9.Having considered the evidence, the Board found that the applicant’s evidence was completely inconsistent with his previous claims [27]; that the Board had serious doubt about his general credibility [31]; that the Board was satisfied that there is no real risk that he will be harmed by the loan sharks if he returns to Bangladesh; that his brother will settle his debts with the creditors, and he may relocate to live with his relatives [32].

10.The Board therefore dismissed his appeal and confirmed the Director’s Decision.  See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003065_2019_files/the_Board's_Decision.pdf.

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

11.The applicant has filed Form 86 dated 17 October 2019 for leave to apply for judicial review of the Board’s Decision.  He raised no reason in support of his application in Form 86.

12.In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

13.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).

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.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.”

16.The applicant has raised no valid ground to challenge the Board’s findings.

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

DISPOSITION

18.I dismiss his application.

Dated the 14^th day of August 2025.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1