RAHMAN MOHAMMED ZIAUR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2509/2019

[2025] HKCFI 286

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2509 OF 2019

_____________

BETWEEN

_____________

_______________

J U D G M E N T

_______________

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 7 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 did not ask for a hearing. I shall deal with his application on the papers.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 40, is a national of Bangladesh. By written representation dated 19 August 2013, he lodged his non-refoulement claim on the basis that, upon refouled, he would be harmed or killed by his former business partners Azad and Romaan (“business partners”) and people from Awami League (“AL”); and also there is a false charge of embezzlement by his former business partners.

5.  According to the applicant, in 2009, he formed a partnership with his business partners in garments business. Between 2009 and 2010, the applicant had argument with his business partners over the profit of the business as the applicant thought that there should be profit whereas his business partners showed him deficit in the business. In March 2011, there was a fight between him and his business partners. They used wooden sticks and tools for making garments to hit him for 5 minutes. He was injured and required medical treatment. His business partners had also filed a charge of embezzlement of the business’s properties against him. Police went to his residence for him. He escaped to his uncle’s house. A warrant was issued against him. He left Bangladesh for China in March 2012. He then entered Hong Kong through China. He surrendered to police in Yuen Long in March 2013. He had raised a torture claim, which was rejected by the Director on 1 August 2013.

6.  Details of the applicant’s story can be found in paragraph 9 of the Director’s Decision dated 18 July 2018 (“the Director’s Decision”).

The Director’s Decision

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

8.  By way of the Director’s Decision, the Director dismissed the applicant’s application for the reasons that (i) the low intensity of past ill-treatment from his business partners is indicative of low future risk of harm upon his return to Bangladesh [15]-[17]; (ii) state protection is available to mitigate the risks [18]-[21]; and (iii) internal relocation is viable [22]-[27].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 16 January 2019, the Board conducted a hearing. The applicant had given oral evidence before the Board.

10.  Having considered the evidence, the Board found:

“16. I find aspects of the Petitioner’s claim to be incredible. Some aspects of his evidence at the Hearing were inconsistent with the information he gave in other sittings, others were inconsistent with credible COI and some defied logics. …

17. By reason of my assessment of the credibility of the Petitioner’s account, I cannot find the centerpiece of his story to stand. …

27(d). Further, I believe the Petitioner will receive adequate state protection and that would further reduce or even negate the risk of the Petitioner being killed or subjected to ill-treatment by Azad and Romaan.

27(g). … [risks] can be further reduced, if not negated by the Petitioner relocating. I find Dhaka to be suitable place for the Petitioner to relocate.”

11.  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

12.  The applicant has filed Form 86 dated 29 August 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

14.  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).

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

16.  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.”

17.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

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

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

DISPOSITION

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