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

HCAL 3081/2019

[2025] HKCFI 2167

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3081 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 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 2 April 2025.

The applicant

3.  The applicant is a national of Bangladesh. According to records, he illegally entered Hong Kong on 6 August 2015 and surrendered to the Immigration Department on 11 August 2015. In due course, he 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 involved in the Jamaat-e-Islami (“JI”).

5.  According to the applicant, he had problems with AL including being arrested by the police for four false cases by the AL and 2 attack incidents. His shop was burnt down and himself, his father and brother were attacked with bamboo sticks and sharp weapons. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 14 June 2018 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: the low intensity and frequency of past ill-treatment is indicative of a small future risk of harm, the problem was a private dispute, and there was no evidence supporting the assertion that the applicant was wanted by the police [11-16]; state protection was available [17-18]; and internal relocation alternatives were available and reasonable [19-21].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 13 June 2019, the Board conducted an oral hearing for his appeal. At the hearing, the applicant confirmed that all the claims were true and did not wish to correct or alter anything [19].

9.  Having considered the evidence, the Board did not accept that the applicant was active in JI or falsely accused of murder or other crimes due to the applicant’s inability to provide coherent details about his claims and inconsistent evidence [37]. 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 18 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. Before me, the applicant said that the Board was wrong because it did not accept his story.

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.