KHAN JOYNAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2612/2019

[2025] HKCFI 964

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2612 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 30 august 2019 of the Torture Claims Appeal Board dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing. He appeared before the Court on 26 February 2025.

The applicant

3.  The applicant, aged 34, is a national of Bangladesh. He surrendered to the Immigration Department on 5 August 2015 and admitted that he had sneaked into Hong Kong illegally from China. He lodged his non-refoulement on 31 March 2016 on the basis that, if refouled, he will be harmed or killed by the people of Awani League (“AL”) because he was a member of the Bangladesh Nationalist Party (“BNP”, its rival party.

4.  According to the applicant, he was an ordinary member of BNP. In 2014, he was attacked by 20-25 AL members with weapons. He sustained injuries on his left hand and his right leg was broken. They also threatened to kill him. He had to be admitted in Hospital for medical treatment for 15-20 days for recovery. He took his parents’ advice and left his country for Hong Kong.

5.   Details of his claim are set out at paragraph 7 of the Notice of Decision dated 24 July 2018 (“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. In summary, the Director found that (i) his past experience indicates a small risk future risk of harm if he returns to Bangladesh; (ii) the perceived harms from the AL are not as imminent and substantial as he asserted; (iii) there was no evidence that the state was involved in the incident; (iv) there was no evidence to show that state protection will not be available; and (v) internal relocation is viable. [16]-[27]

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 10 January 2019, the Board conducted an oral hearing for his appeal.

9.  Having considered the evidence, the Board stated:

“13. I find the Appellant’s claim to be incredible. The Appellant was generally evasive, argumentative and inconsistent with his answers during the Hearing. Some aspects of his evidence at the Hearing were inconsistent with the information he gave in other settings. Others were inconsistent with credible COI and some defied logic….

24. … the risk of the Appellant being subject to such ill treatment (tortured or killed) is low …

36. For reasons set out above, the Appeal is refused and the Decision [Director’s Decision] is confirmed.”

Application for leave to apply for judicial review of the Board’s Decision

10.  The applicant has filed Form 86 dated 9 September 2019 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, the applicant raised the grounds below to challenge the Board’s Decision.

(1) The hearing bundle was given to him shortly before the hearing and he did not have legal advice or interpretation service, which caused him confused in the hearing, but he had answered all the questions put to him.

(2) The Board had relied on the source of news which is not officially recognized or it is simply hearsay or outdated, all of which had caused the Board to make groundless speculation that he will be safe to return to Bangladesh.

(3) There was no screening for BOR 2 risk.

(4) The Adjudicator had not been to his country to understand the situation thtere.

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, when asked if he considered that the Board’s Decision was wrong, he said he did not think so. He simply asked the Court to review it.

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.  As to the grounds in paragraph 11, the Court of Appeal had held that he was not entitled to free legal advice or interpretation at all stages of the proceedings. It was not necessary to have another screening for BOR 2 risk as the Immigration Department had conducted one for his other applicable risks. The adjudicator can rely on the country of origin information without going to his country to understand his situation. In view of his submissions before the Court, it is obvious that the applicant has no valid ground to challenge the Board’s Decision.

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.