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

HCAL 3027/2019

[2025] HKCFI 2514

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3027 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 3 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. He appeared before the Court on 30 April 2025.

The applicant

3.  The applicant is a national of Bangladesh. On 15 July 2015, the applicant surrendered to the Immigration Department after sneaking into Hong Kong illegally by boat on 28 June 2015. In due course, the applicant lodged a 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”) or the Bangladesh Chhatra League (“BCL”) as the applicant was an ordinary member of the Bangladesh Jatiotabadi Chatra Dal (“JCD”), the student wing of the Bangladesh Nationalist Party (“BNP”).

5.  According to the applicant, the applicant encountered two incidents. First, the applicant was slashed by a Hindu with a knife in around early 2014 that left scar marks on his hands; and again in May 2015, there were up to as much as 20 to 30 Hindus and members of AL who came to the applicant’s house in an attempt to burn it and assaulted the applicant and his family. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 7 January 2019 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 the state would not benefit from ill-treatments or threats made against the applicant, and there was no real intention by the BCL/AL people that showed they had a real intention to kill the applicant [12]; that state protection was available [13-15]; and that internal relocation alternatives were available and reasonable [16-24].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. The Board was satisfied that the appeal could be justly determined without a hearing, and no oral hearing was held [9].

9.  Having considered the evidence, the Board found that the nuisances from the AL were of low intensity and frequencies [27]; there was no, or no reliable evidence to show that the state of Bangladesh was unwilling or unable to afford protection to the applicant, and the Board did not find any substantial grounds that the applicant would be at risk of being subjected to the applicable grounds [90-93]. In any event, the Board was satisfied that internal relocation was not unreasonable or unduly harsh [83-89]. In conclusion, the Board held that 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 the Form 86 on 15 October 2019 for leave to apply for judicial review of the Board’s Decision but did not put forth any grounds.

11.  In the applicant’s affirmation in support of his application, the applicant exhibited the hearing bundle including the Board’s Decision and one handwritten page listing the relief sought. The applicant also exhibited 4 handwritten pages in which was “Ground on which relief is sought” which is summarized as follows: (1) the Board’s Decision was unreasonable or irrational in the public law sense; (2) the Board had unlawfully exercised the discretion by refusing the applicant’s appeal on the grounds that it did not satisfy the requirements; (3) the Board acted in a procedurally unfair manner; and (4) the Board relied on some cases which were outdated. The applicant did not put forth details or particulars to support his bare assertions.

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 said that he understood the Board’s Decision. He disagreed with the Board because it did not accept his evidence.

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.  It is within the Board’s province to determine what evidence the Board should accept. 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.