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

HCAL 3047/2019

[2025] HKCFI 2434

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3047 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 3 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 25 April 2025. I shall deal with his application on the papers.

The applicant

3.  The applicant is a national of Bangladesh. On 5 December 2015, the applicant was arrested by police for being a suspected illegal immigrant that entered illegally on the same day by sea. In due course, the applicant lodged a 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 preaching Islam in his living area.

5.  According to the applicant, the applicant encountered two incidents. First, the applicant was slashed by a Hindu with a knife in around early 2014 that left scar marks on his hands; and again in May 2015, there were up to as many as 20 to 30 Hindus and members of AL who came to the applicant’s house in an attempt to burn it and assault the applicant and his family. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 3 January 2019 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 the applicant’s claim and dismissed his claim. In summary, the Director found that: the credibility of the applicant was not accepted and there were no acts that showed any real intention to kill the applicant [11-16]; state protection was available [17-21]; and internal relocation alternatives were available and reasonable [22-24].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 26 June 2019, the Board conducted an oral hearing for his appeal, during which the Board accepted that the applicant was an ordinary member of BNP and the AL were non-state actors, but there was no reliable evidence that the AL ill-treated the applicant with any intention under the definition of torture or persecution, or that the AL acted in the interest to the government of Bangladesh [53-66].

9.  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 [98-101]. In any event, the Board was satisfied that internal relocation was available [91-97]. 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

10.  The applicant has filed Form 86 dated 16 October 2019 for leave to apply for judicial review of the Board’s Decision. He did not put forth any ground.

11.  In his affirmation in support of his application, the applicant exhibited the hearing bundle including the Board’s Decision, but did not put forth any grounds or 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.

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 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.