UDDIN JASIM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2518/2019

[2025] HKCFI 793

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2518 OF 2019

_____________

_____________

_______________

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 16 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. However, he was absent at the hearing on 22 January 2025. I shall deal with his application on the papers.

The applicant

3.  The applicant, aged 43, is a national of Bangladesh. He was arrested by police and he admitted that he sneaked into Hong Kong illegally on 16 August 2015. By written signification dated 22 August 2015, the applicant lodged his non-refoulement on the basis that, upon refouled, he will be harmed or even killed by his ex-exployee Nazmul (“NZ”) if he does not pay the outstanding salary to him; and by his neighbours who are members of the Awami League (“AL”) as he was a member of the Bangladesh Nationalist Party (“BNP”).

4.  According to the applicant, he ran a garment factory and had 45-50 employees. In September 2011, his employee IIyias misappropriated around 1,100,000 Takas from his company and disappeared. He was unable to pay his employees’ salary. He closed down his factory. One of his employees NZ had threatened to kill him if he did not his salary. In September 2014, he was attacked by his enemies on the street with hockey sticks for no reasons. He was also verbally threatened by his AL neighbours. On 25 July 2015, he left his country for China and he sneaked into Hong Kong.

5.  Details of his claim are set out at paragraph 8 of the Notice of Decision dated 27 December 2017 (“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 as he found that (i) there is no substantial ground to believe that he will be subjected to the claimed risks if he returns to Bangladesh [13]; (ii) state protection will be available [14]; and (iii) internal relocation will be viable [15].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 17 June 2019, the Board conducted an oral hearing for his appeal.

9.  At the beginning of the hearing, the applicant declined to give oral evidence or answer questions from the Board, despite the Board had warned him that his answers would be necessary to clarify his evidence in his statement and that he had the duty to establish his claim by evidence. The Board further warned him that if he refused to give evidence, the Board might have to rely on the papers and might not believe his evidence. He insisted on not giving oral evidence.

10.  As the applicant refused to give oral evidence, the Board assessed his evidence on the papers, including the country of origin information. Having done so, the Board rejected his evidence on the applicable risks, and dismissed his appeal.

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

11.  The applicant has filed Form 86 dated 30 August 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, the applicant said that he had asked the Board to give him more time to prepare for his hearing. The Board declined. The applicant said that his case should not be determined by questions and answers.

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.

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.  The grounds under paragraph 12 are not valid to challenge the Board’s Decision. There is no record that he had asked for an adjournment of the hearing. Section 37ZA provides that the applicant has the duty to provide all information relevant to his claim to the Board. Section 37ZD provides that if the applicant fails to do so, the Board may take this into account and this may damage his credibility. The Board was entitled to clarify his evidence by way of his oral evidence at the hearing.

17.  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.