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HCAL 2501/2019
[2025] HKCFI 788
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 2501 OF 2019
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BETWEEN
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Sheikh Aptar |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
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| Before: |
Deputy High Court Judge K.W. Lung in Court |
| Date of Hearing: |
22 January 2025 |
| Date of Judgment: |
11 March 2025 |
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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 23 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. He appeared before the Court on 22 January 2025.
The applicant
3. The applicant, aged 42, is a national of Bangladesh. He was arrested by police and referred to the Immigration Department. He admitted that he came to Hong Kong illegally on 27 December 2015. He lodged a non-refoulement claim by written representation on 2 December 2015. A removal order was issued against him on 29 June 2017. His claim is on the basis that, if refoule, he will be harmed or killed by Moti Sikdar and his people from the Awami League (“AL”).
4. According to the applicant, he belonged to the Bangladesh Nationalist Party, a rival political party to AL. The problem started in June 2011 when he was attacked by the AL people with choppers and bamboo sticks. He went to live with his friend in Dhaka for 2 months. He did not report this incident to police. His enemies tracked him down in Dhaka. He moved to another friend’s place. In September 2011, he was attacked by a group of 50 to 60 people from the AL He then moved to Khulna, his relative’s home. He heard Moti’s voice. Shortly afterwards, the building was on fire and he managed to escape. He moved to his brother’s place in Mollarhat Bagerhat. On the advice of his friends, he left his country for Hong Kong through China.
5. Details of his claim are set out at paragraph 8 of the Notice of Decision dated 9 January 2019 (“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 (i) his past experiences in Bangladesh indicated that the future risk upon his return was low; (ii) state protection would be available; and (iii) internal relocation would be viable. [15]-[24]
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 3 July 2019, the Board conducted an oral hearing for his appeal.
9. Having considered his evidence, the Board found the facts below.
(1) The applicant’s evidence was found incredible and the Board considered that as he was not ill-treated with severity commensurate with BOR 3 risk in the past, there should not be any real risk of harm or otherwise ill-treatment upon his return to Bangladesh. [80]-[81]
(2) Reasonable state protection will be available to the applicant as there was no evidence that the state was involved. [75]-[76]
(3) Internal relocation would be viable. [78]
Application for leave to apply for judicial review of the Board’s Decision
10. The applicant has filed Form 86 dated 29 August 2019 for leave to apply for judicial review of the Board’s Decision.
11. In his affirmation in support of his application, the applicant has raised the issues that he was not provided legal or language assistance and the Board’s attitude was not friendly to him.
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 complained that the Board did not accept his evidence and 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. As to the grounds in support of his application under paragraph 11, they do not support his application because the Court of Appeal had in the past cases held that the lack of language assistance is not a valid ground and he was not entitled to free legal representation at all stages of the proceedings.[1] As to his complaint of the Board’s attitude, it is a bare allegation without evidence in support. Nor is there evidence that such attitude was prejudicial to his appeal.
16. There is no valid ground from the applicant to challenge the Board’s Decision.
17. There is no reason that the Court should interfere with the Board’s finding of the facts.
18. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.
DISPOSITION
19. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
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(K.W. Lung)
Deputy High Court Judge
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The applicant appeared in person.
[1] The Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, held:
“16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.”
The Court of Appeal in Re Ahmed Syed Rafiq [2018] HKCA 178, Hon Lam & Chu JA, 26 March 2018, held:
“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”
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