SHIPON M R SHAMSUZZAMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2935/2019

[2025] HKCFI 1534

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2935 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. However, he was absent at the hearing on 19 March 2025. I shall deal with his application on the papers.

The applicant

3.  The applicant, aged 48, is a national of Bangladesh. He was arrested by police for illegally entering and remaining in Hong Kong on 5 January 2016. In due course, the applicant lodged his 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”) as the applicant was a member/secretary of the Bangladesh Nationalist Party (“BNP”).

5.  According to the applicant, he had problems with AL They demanded extortion money from him. He refused. Then he was attacked by the AL people with knives and he suffered wound cuts on his wrist and thumb. He was also threatened with death. His wife was pregnant and was scared. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 8 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 assessed the applicant’s claim and dismissed his claim. In summary, the Director found that: there were no substantial grounds to believe that the claimed future risk of harm from the AL members was real and foreseeable taking into account the intensity and frequency of past ill-treatment [12], state protection was available [16-21]; and internal relocation alternatives were available and reasonable [22-23].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 6 August 2019, the Board conducted an oral hearing for his appeal. At the hearing, the applicant had the assistance of a Bengali interpreter and confirmed that they understood each other while confirming that the information supplied by the applicant was true [6-9].

9.  Having considered the evidence, the Board did not accept that the applicant presented any credible evidence that his life was at real risk under the applicable grounds [66, 69, 73, 80]. In any event, having considered the evidence, internal relocation was a reasonable option [81-88]. In conclusion, the Board held 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 Form 86 dated 8 October 2019 for leave to apply for judicial review of the Board’s Decision. The applicant did not put forth any valid grounds for his application.

11.  In the applicant’s affirmation in support of his application, the applicant exhibited his hearing bundle including the Director’s and Board’s Decisions but again did not put forth any grounds.

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.

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 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.