TOWLAD MIAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2595/2019

[2025] HKCFI 1269

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2595 OF 2019

_____________

BETWEEN

_____________

_____________

JUDGMENT

_____________

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 16 August 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 10 March 2025.

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 53, is a national of Bangladesh. He came to Hong Kong on 10 September 1997 as a visitor. He overstayed since 11 December 1997 and was arrested by police. He was convicted for illegally remaining in Hong Kong and he had served 3 months’ imprisonment. He was also charged and convicted of the offence of using other person’s identity card for travelling, for which he was sentenced to 6 months’ imprisonment. He made a torture claim to the Director. His application was rejected. His appeal to the Board was rejected on 18 August 2014. He lodged his non-refoulement claim on 24 February 2009 by way of written signification for the reason that, if refouled, he will be harmed or killed by the people of the Awami League (“AL”) and the Bangladesh Nationalist Party (“BNP”).

5.  According to the applicant, he joined the Jaker Party (“JP”) in 1991 or 1992. In 1994, the AL people told him to relinquish JP or he would be killed. In March 1994, his close friend was chopped to death by the AL people. The matter was reported, but it seemed that the police did not make investigation into the case. His another friend was badly injured in a bomb explosion. In 1995, the AL came into power and they wanted to eliminate JP. In 1997, his friend assisted him to leave for Korea, but his friend abandoned him in Hong Kong and he was arrested by police in April 2001. He was returned to Bangladesh. In 2004, the youth wing of BNP had a fight with his party and he witnessed a BNP member shot his friend, Firoz, to death. The BNP people threatened him not to be a witness or they would kill him. Therefore, he left Bangladesh again for Hong Kong.

6.  Details of his claim are set out at paragraph 9 of the Notice of Decision dated 24 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”); and

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”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that his past experience in Bangladesh is indicative of a small future risk if he returns to Bangladesh; that it is only his speculation that the AL people will target and kill him; that state protection will be available to him; and internal relocation is viable. [20]-[33]

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. Having considered the matters of the case, the Board decided not to hold a hearing for the determination of his appeal.

10.  Having considered the evidence, the Board found that, based upon the facts the applicant alleged, the Board agreed with the Director that the risks that he may face if he returns to Bangladesh will be low, that there was no evidence that the state was involved; that state protection will be available. The Board held that under the circumstances, it would not be necessary for it to consider internal relocation.

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

11.  The applicant has filed Form 86 dated 6 September 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, the applicant has raised the grounds below.

(1) The Board had unlawfully fettered its discretion by refusing his application.

(2) The adjudicator acted in a procedurally unfair manner.

(3) The Board’s Decision is unreasonable or irrational in the public law sense.

(4) The Board failed to meet the greater case and duty to a self-represented claimant.

DISCUSSION

13.  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).

14.  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 his wife is a Hong Kong resident. He had applied for a dependent’s visa, but was rejected 2 or 3 times without telling him the reasons.

15.  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.”

16.  Those grounds under paragraph 12 are his bare assertions or opinions without any evidence in support. They are not valid to challenge the Board’s Decision.

17.  That his wife is a Hong Kong resident and he failed to obtain a dependent’s visa from the Director are not relevant to this application.

18.  Under the circumstances, I find nothing amiss for the Board not to hold an oral hearing for the applicant’s appeal. The applicant has raised no valid ground to challenge the Board’s findings.

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.