SAYED MD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2500/2019

[2025] HKCFI 789

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2500 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 31 July 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. He appeared before the Court on 22 January 2025.

The applicant

3.  The applicant, aged, is a national of Bangladesh. He entered Hong Kong illegally on 12 August 2015 by boat and surrendered to the Immigration Department on 14 August 2015. He lodged his non-refoulement claim by written representation on the basis that, if refouled, he will be harmed or killed by the associates of the Awami League (“AL”) as a result of his involvement in the General Election held in January 2011.

4.  According to the applicant, he was a supporter of the Bangladesh Nationalist Party (“BNP”), a rival party to the AL. In the elections of 2009 and 2014, he had assisted the BNP to encourage people to join BNP. The associates of the AL approached him and persuaded him to join the AL. He ignored them. The AL won election in 2014. Shortly afterwards, his enemies and other AL people attacked him with fists and weapons. He fell unconscious on the ground. He did not seek assistance from police. Nor did he report the matter to police too as he feared his enemies might retaliate against him. He moved to Dhaka to avoid his enemies. His mother told him that they were still looking for him and asked her to hand him over to them. He saw his enemies in Dhaka and left for Chittagong. However, his enemies went to Chittagong and found him. They did not hurt him, but only told him to quit BNP and join AL. On his friends’ advice, he left Bangladesh for Hong Kong.

5.  Details of his claim are set out at paragraph 6 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 for the reasons that (i) since there was no state involvement and from the past experience and his enemies had no intention of killing him, his risk of harm if he returned to his country is low; (ii) state protection will be available; and (iii) internal relocation is viable. [12]-[21]

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 26 June 2019, the Board conducted an oral hearing for his appeal.

9.  Having considered the evidence, the Board found that the applicant was not a truthful witness and he had fabricated his claims in relation to his political opinion and the problem he allegedly experience as a result [43]-[44]; and there is no real risk of harm if he returns to Bangladesh. [55] Accordingly, the Board 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 29 August 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 that he did not have a lawyer to assist him and the Board was behaving as his opposition party.

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 complained that the Board did not believe his evidence and asked the Court 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.  The Board had found that the applicant was not a reliable witness.

16.  As to the grounds under paragraph 11, he is not entitled to free legal representation at all stages of the proceedings[1]. His allegation of the Board’s attitude is his bare allegation without any evidence to support or show that such attitude was prejudicial to his appeal.

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.