IBRAHIM MOHAMMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2926/2019

[2025] HKCFI 1300

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2926 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 19 April 2018 of the Director (“the Director’s Decision”) and the Decision dated 13 September 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). However, the Director’s Decision has been superseded by the Board’s Decision.

2.  The applicant requested an oral hearing. He appeared before the Court on 10 March 2025.

The applicant

3.  The applicant, aged 45, is a national of Bangladesh. He sneaked into Hong Kong from China on 21 January 2016 and was arrested by police. He lodged a non-refoulement claim by written representation on the basis that, if refouled, he will be harmed or killed by the people of the Awami League (“AL”) as he was a member of its rival party Jamat Islamt Party (“JIP”).

4.  According to the applicant, after the election in 2007, the AL was the ruling party and the its people beat the JIP members including the applicant because they gathered protests against the AL. He was beaten on the street by the AL people with a big knife. As a result, he was seriously wounded in his right arm and left knee. He was admitted to hospital for 6 days and he had to receive follow-up treatment for 8 months. He moved to other places to live in order to avoid the AL people. He had worked in Dhaka for 7 years without any incident. In 2015, his mother told him that the AL people had made false accusations against him and they might put him in jail. In December 2015, he went to China and then sneaked into Hong Kong.

5.  Details of his story are set out in paragraph 6 of the Notice of Decision dated 19 April 2018 (“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 for the reasons that his alleged risk of harm was assessed to be not real and foreseeable; that state protection is available; and internal relocation is viable. [13]-[27]

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 8 March 2019, the Board conducted a hearing for his appeal.

9.  Having considered the applicant’s evidence, the Board found that his evidence was not reliable because of lack of substance in support; that it was groundless and fanciful to say that his enemies were still interested in him; that it did not accept that there were false charges against him; that there was no evidence to show that the state was involved; that state protection will be available and internal relocation is viable, if he returns to Bangladesh. [61]-[76]

10.  For those reasons, the Board 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 4 October 2019 for leave to apply for judicial review of the Board’s Decision.

12.  The applicant has raised the grounds below insofar as the Board is concerned:

(1) it had reached the wrong decision because it did not take into account of the BOR 2 risk;

(2) the adjudicator did not give him sufficient time and chance to arrange relevant evidence for his appeal;

(3) procedural impropriety: the Board failed to consider his danger in his country; and

(4) error/misdirection in law: the Board failed to assess his case by reference to the country of origin information and there was no basis to conclude that his family members will not be risk upon his refoulment.

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 Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he did not think that the Board was wrong in its decisions. However, he asked the Court to review the Board’s Decision.

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.  Those grounds under paragraph 12 are bare assertions without any evidence in support and are contrary to the applicant’s verbal submission before the Court. They are not valid to challenge the Board’s Decision.

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.