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

HCAL 2387/2019

[2025] HKCFI 191

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2387 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 19 July 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. However he was absent at the hearing on 18 December 2024. I shall deal with his application on the paper.

The applicant

3.  The applicant, aged 36, is a national of Bangladesh. He surrendered to the Immigration Department on 23 March 2015 after entering Hong Kong illegally on 13 March 2015. The applicant made a non-refoulement claim on 25 June 2015. The claim was made on the basis that, if refouled, he would be harmed or even killed by members of Awami League (“AL”) due to a money dispute he had with an AL affiliated customer (“the customer”). He also feared to be arrested by the police because there was a case filed against him.

4.  According to the applicant, he became a Bangladesh Nationalist Party (“BNP”) member in around 2012. Shortly thereafter, AL members came to his family food store to extort money from him. Upon the applicant’s refusal, they vandalised his shop and assaulted him as well as his brother. In 2013, the applicant started up a cow trading business with his brother. About six months after the running of the business, the customer defaulted payment after buying some cows on credit. Whenever the applicant chased for payment, the customer and other AL members would threaten him. Subsequently, they even filed a false fighting case against him. In late 2014, the applicant relocated to his in-laws’ house. A few months later, the customer found out the whereabouts of the applicant and threatened to send AL members to get him. Out of fear, the applicant left Bangladesh for China on 14 January 2015. Eventually, he sneaked into Hong Kong from Shenzhen on 13 March 2015.

5.  The applicant last contacted his family in June 2018. He was informed that an arrest warrant had been issued against him before he departed Bangladesh, while the AL members had been to his and his in-law’s house looking for him. The applicant was of the view that he could not seek protection from the police against the ruling AL party. He also considered internal relocation not viable because it would only be a matter of time for the AL members to locate him.

6.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 27 July 2018 (“the Director’s Decision”).

The Director’s Decisions

7.  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”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that (i) the past ill-treatment from AL members failed to attain a minimum level of severity [14]; (ii) as the applicant did not encounter any money extortion from AL members since 2012, such risk should have dissipated [15]; (iii) there was no evidence showing that the customer would materialise his threat to seriously harm or kill the applicant [16]; (iv) it was highly improbable that AL members would continue pursuing the applicant given his grass-root involvement in BNP and the lapse of time [17]; (v) the claimed threat from AL members was at best a localised one [18]; (vi) there was no indication that the Bangladeshi authorities had any adverse interest towards the applicant and that the police were looking for him merely for investigation of the false fighting case [19]; (vii) state protection would be available [20]-[22] and (viii) internal relocation would be viable [23]-[24].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 15 April 2019, the Board conducted an oral hearing.

10.  The Board accepted that the applicant faced threats from AL members and the customer due to his failure to pay extortion money to the former and his demand of the outstanding amount from the latter [38]. However, the Board found no reliable evidence showing that the applicant (i) was personally targeted by AL; (ii) would suffer continuous threats or antagonism from AL members and the customer; (iii) had suffered injuries that reached the requisite level of severity; (iv) would face risk throughout Bangladesh and (v) would be denied state protection [40].

11.  Based on such findings, the Board rejected the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk. In any event, state protection and internal relocation would be available according to the country of origin information [42]-[92].

12.  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

13.  The applicant has filed Form 86 dated 19 August 2019 for leave to apply for judicial review of the Board’s Decision.

14.  In his affirmation in support of his application, the applicant raised the ground that the Board was in breach of procedural fairness because: (i) it had unlawfully fettered its discretion; (ii) the adjudicator acted in an unfair manner; (iii) the Board’s Decision if unreasonable and irrational in the public law sense; and (iv) the Board failed to meet the greater care and duty owed to a self-represented claimant.

DISCUSSION

15.  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).

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

17.  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.”

18.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. Those grounds under paragraph 14 are his bare assertions or personal opinions without any evidence in support. They are not valid to challenge the Board’s Decision.

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

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

DISPOSITION

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