RIAD MOHAMMAD ALI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2360/2019

[2025] HKCFI 355

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2360 OF 2019

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BETWEEN

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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 8 August 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office 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 8 January 2025.

The applicant

3.  The applicant, aged 43, is a national of Bangladesh. He last entered Hong Kong as a visitor on 15 June 2015 and had overstayed since 30 June 2015. The applicant surrendered to the Immigration Department on 7 July 2015 and he made a non-refoulement claim on 30 November 2015. The claim was made on the basis that, if refouled, he would be harmed or even killed by members of Awami League (“AL”) and his clients.

4.  According to the applicant, he joined the youth wing of Bangladesh Nationalist Party (“BNP”) in 2007. Since 2011, he started up an agency to assist Bangladeshi to apply for passport and visa to work overseas. In May 2013, shortly after the large-scale demonstration by Jamaat-e-Islam Party (“JI”) and Hefajat-e-Islam Party members against the ruling AL government, of which BNP also provided assistance to the participants, the applicant was assaulted and threatened twice by a group of 4-5 AL members as they thought he was a JI member or was involved in assisting the demonstrators.

5.  Later in the same year, the applicant paid another agent after he offered to obtain Dubai working visas for his clients. Yet, it turned out that those visas were only for Malaysia and Singapore and the applicant was hard pressed by his clients for a refund as a result. Subsequently, the matter was even reported to the police and an arrest warrant was issued against him on 9 June 2015.

6.  In early 2015, the applicant was tipped off by a friend that there was a plot by AL to murder him. Given the threat from AL members and the pressure from his clients, the applicant left Bangladesh on 22 May 2015. He last entered Hong Kong from Malaysia on 15 June 2015 and had not departed since then.

7.  While the applicant was in Malaysia, he was informed by his wife that the AL members and his clients were still after him. The applicant was of the view that he could not seek protection from the police as he would be arrested for fraud and deception. He also considered internal relocation not viable given the strong network of AL within Bangladesh.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 13 August 2018 (“the Director’s Decision”).

The Director’s Decision

9.  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”);

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”); and

d. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that (i) the conduct of the AL members and his clients showed that they had no real intention to seriously harm or kill him, so that he faced no imminent risk [12]; (ii) state protection would be available and there was also no indication that the Bangladeshi government had any adverse interest towards the applicant [13]-[20] and (iii) internal relocation would be viable [21]-[27].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board. On 24 July 2019, the Board conducted an oral hearing. During the hearing, the applicant refused to answer any questions and requested that a decision be made based on his written evidence [22]-[24].

12.  The Board had serious doubts about the credibility of the applicant [27]-[31]. Given the applicant’s refusal to answer any questions, the Board was equally not satisfied that he had discharged his onus to substantiate his claim [32]-[35].

13.  Based on such findings, the Board found no substantial grounds that the applicant would face any real risk of harm upon return to Bangladesh. The Board therefore rejected the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [36]-[45].

14.  The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

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

15.  The applicant has filed Form 86 dated 15 August 2019 for leave to apply for judicial review of the Board’s Decision.

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

(1) The Board had unlawfully fettered its discretion, refusing his claim.

(2) The Board had failed to meet the greater care and duty owned to a self-represented claimant.

(3) The Board’s Decision was unreasonable or irrational in the public law sense; or was a result of procedural errors or unfairness.

(4) The applicant’s life and limb are involved and his human rights are infringed.

(5) The Board was acting in a procedurally unfair manner.

(6) The Board had relied on the source of news which is not officially recognized or it is simply hearsay.

DISCUSSION

17.  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).

18.  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 he did not mean that the Board was wrong, but he requested the Court to review its decisions.

19.  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.”

20.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded.

21.  As to the grounds in support of his application under paragraph 16, they are bare assertions of personal opinions without any evidence in support. In view of his submissions before the Court, those grounds are of no moment and not valid to challenge the Board’s Decision.

22.  There is no reason that the Court should interfere with the Board’s finding of the facts.

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

DISPOSITION

24.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.