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

HCAL 3099/2019

[2025] HKCFI 2735

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3099 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 29 July 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 38, is a national of Bangladesh. According to records, the applicant illegally entered Hong Kong on 17 September 2014 and was arrested by the police as an illegal immigrant on 22 September 2014. 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 was an active member in the Bangladesh National Party (“BNP”).

5.  According to the applicant, there were 5 incidents where AL people either physically assaulted, threatened the applicant, or was seeking the applicant at his home. He was attacked by the AL people with wooden sticks and iron rods and his arm was broken. The AL people were targeting the BNP members, including himself. He moved to live in Dhaka in his friend’s place. He was told by his family that the AL people were still looking for him. He decided to leave his country for safety. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 5 October 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 and dismissed his claim. In summary, the Director found that the level of risk of harm from AL is assessed to be low; that the low intensity and frequency of past ill-treatments from AL is indicative of a low future risk of harm from them, and the problem was a local one [16-19]; that state protection was available [20]; and that internal relocation alternatives were available and reasonable [21]

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 14 March 2019, the Board conducted an oral hearing for his appeal. At the hearing, the applicant was assisted by an interpreter, and the Board found that while there was considerable political violence between the AL and BNP, the country of origin information indicated that there was not a real risk of harm to low-level supporters such as the applicant [28, 38].

9.  Having considered the evidence, the Board found that the applicant did not face a real risk of proscribed harm from AL if refouled [40]. 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 21 October 2019 for leave to apply for judicial review of the Board’s Decision. The applicant’s grounds can be summarised as follows: the Board was in breach of procedural fairness such as being unreasonable or irrational in the public law sense. No particulars or details were provided in support of the grounds.

11.  In the applicant’s affirmation in support of his application, the applicant exhibited the Board’s Decision and deposed that the Board significantly relied on the source of news which are not officially recognized or was simply hearsay. It also complained that the Board made groundless speculations and that there was a lack of care to make appropriate arrangements in relation to the hearing bundle. These were bare assertions that was not supported by any documentation or further particulars.

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’s Decision was not wrong. Nevertheless, he asked this Court to review the Board’s Decision.

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.  In view of the applicant’s agreement that he considered that the Board’s Decision was not wrong, his grounds to challenge the Board’s Decision under paragraphs 10 and 11 are irrelevant. 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.