HOSSAIN MD TOFAZZAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3031/2019

[2025] HKCFI 2515

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3031 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 4 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 30 April 2025.

The applicant

3.  The applicant, aged 47, is a national of Bangladesh. According to records, the applicant illegally entered Hong Kong on 15 December 2015 and surrendered to the Immigration Department on 23 December 2015. 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 handled a complaint case against a village gangster who was a member of AL.

5.  According to the applicant, he was a member of the Jamat-e-Islam Party and were handling women rights matters. He had dealt with a complaint from a girl that a male called Bovi had been harassing her. A mediation meeting was called between the families of the girl and Bovi. Around 2 days later, 10 to 15 masked men came to the applicant’s family house. He recognized the voice of one of them being Bovi. They told him to not interfere with Bovi’s business. They had used knives to slash his chest. His wife was also hit and punched. He escaped and lived in his friend’s place in Dhaka for around 1 year and 9 months. His family told him that Bovi and his people were still looking for him. He therefore came to Hong Kong to avoid them. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 28 December 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 dismissed the applicant’s claim. The Director found that the low intensity and frequency of past ill-treatment is indicative of a small future risk of harm; that it was not accepted that the claimed risk of being harmed or killed was real and foreseeable; that the problem was a private dispute [12-15]; that state protection was available [16]; and that internal relocation alternatives were available and reasonable [17].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 9 July 2019, the Board conducted an oral hearing for his appeal. At the hearing, the applicant appeared in person assisted by an interpreter and confirmed the truth and correctness of all the materials in the hearing bundle [6, 10].

9.  Having considered the evidence, the Board found that the Board did not accept that there was any reliable evidence put forth by the applicant [42] and concluded that the applicant’s claim on the grounds were not satisfied. [87-90] In any event, there was no evidence to suggest that state protection was unavailable [56-60] and internal relocation was available to the applicant [82-86]. 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 15 October 2019 for leave to apply for judicial review of the Board’s Decision. The applicant did not put forth any valid ground in support of his application.

11.  In his 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 ground in support of his application.

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 did not accept his evidence and asked the Court to review its decisions.

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 Board has the discretion to assess his evidence and determine what evidence is acceptable and what evidence is not acceptable. 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.