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

HCAL 3093/2019

[2025] HKCFI 2165

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3093 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 11 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. However, he was absent at the hearing on 2 April 2025. I shall deal with his application on the papers.

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 55, is a national of Bangladesh. On 13 December 2013, he was arrested by police for being a suspected illegal immigrant that entered illegally on 12 December 2015 by sea. In due course, the applicant lodged a non-refoulement claim.

5.  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 a supporter of the student wing Chatra Dal of the Bangladesh Nationalist Party (“BNP”).

6.  According to the applicant, the applicant was once injured by throwing stones during a demonstration. He was threatened by the AL and was suggested to seek asylum. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 30 August 2018 by the Director (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 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”).

8.  By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed his claim. In summary, the Director found that: the low frequency of the past ill-treatment is indicative of a small future risk of harm, the risk of being harmed by AL in his locality was a localized one, and no evidence to suggest that the AL had set the applicant as a political target [12-16]; state protection was available [17-19]; and internal relocation alternatives were available and reasonable [21-24].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 29 July 2019, the Board conducted an oral hearing for his appeal, during which the Board had the opportunity to observe the applicant’s evidence. The Board found that the applicant gave inconsistent and confused evidence about his role and activities with the BNP [44-59].

10.  Having considered the evidence, the Board did not find any substantial grounds that the applicant would be at risk of being subjected to the applicable grounds [83, 91, 96, and 98]. In any event, the Board was satisfied that internal relocation was available [80-81]. In conclusion, the Board held that 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

11.  The applicant has filed Form 86 dated 21 October 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In the applicant’s affirmation in support of his application, the applicant exhibited the Board’s Decision and deposed that he still faces danger and threats from his home country, but again did not put forth any grounds.

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 applicant has raised no valid ground to challenge the Board’s findings.

17.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

18.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.