MIZANUR RAHMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1523/2023

[2025] HKCFI 2272

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1523 OF 2023

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J U D G M E N T

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THE APPLICATION

1.  The applicant’s non-refoulement claim is based upon the torture risk, BOR2 risk, BOR 3 risk and Persecution risk (“the applicable risks”)[1].

2.  The Director first considered the Torture risk, BOR 3 risk and Persecution risk and refused his claim by Notice of Decision dated 18 July 2014 (“the Director’s 1^st Decision”). On appeal the Board by Decision dated 28 December 2016 (“the Board’s 1^st Decision”), dismissed his appeal against the Director’s 1^st Decision.

3.  The Director advised the applicant to make his claim on BOR 2 risk as well. The applicant failed to supply the Director with additional materials and the Director, by Notice of Further Decision dated 11 April 2017, rejected his claim on BOR 2 risk (“the Director’s 2^nd Decision”).

4.  The applicant applied to the Board for his appeal against the Director’s 2^nd Decision, but he was out of time. The Board refused to extend time for him to file the notice of appeal without considering the merits of his case (“the Board’s 2^nd Decision”).

5.  He applied for leave for judicial review of the Board’s 2^nd Decision. The Court granted leave to the applicant. By consent of the Director, the Board’s 2^nd Decision was set aside and the applicant’s appeal was remitted to another constituted Board for consideration.

6.  By Decision dated 23 July 2023 (“the Board’s 3^rd Decision”), the Board dismissed his appeal against the Director’s 2^nd Decision refusing his claim on BOR 2 risk.

7.  The applicant applies for leave to apply for judicial review of the Board’s 3^rd Decision.

8.  Although the applicant did not apply for leave for judicial review of the Board’s 1^st Decision, since his claim under BOR 2 risk relies on the same set of facts in support of his other applicable risks, this Court will take into consideration of the Board’s 1^st Decision on the merits of his case as well.

9.  The applicant asked for a hearing. However, he was absent at the hearing on 14 April 2025. I shall deal with his application on the papers.

The applicant

10.  The applicant, aged 51, is a citizen of Bangladesh. He came to Hong Kong as a visitor on 16 July, 2006. He overstayed and was arrested by police. He lodged his CIDTP (torture) claim on 15 February 2008. He lodged his non-refoulement claim by written representation.

11.  He claimed that if refouled, he would be harmed or killed by members of the underground political party called Purba Bangla Sorbohara party (“SP”). SP was renowned for extorting money from rich people and kill anyone they consider acting against them. One day, the president of his locality told him that he had information that the SP members would kill him and other AL members. He was afraid and moved to live in other places. He finally decided to leave Bangladesh for Hong Kong.

12.  Details of his story are set out in paragraph 7 of the Director’s 1^st Decision.

The Director’s Decisions

13.  By way of the Director’s 1^st Decision, and the Director’s 2^nd Decision, the Director dismissed the applicant’s claim on all applicable risks. The Director found that there was no direct evidence to show that he will have high risk if he returns to Bangladesh [14]; that state protection will be available [15]-[19]; and that internal relocation is viable. [20]-[23] The Director also found in the Director’s 2^nd Decision that he failed to establish that his right to life will be violated if he returns to Bangladesh.

The Board’s Decisions

14.  In the Board’s 1^st Decision, the Board rejected the applicant’s evidence, finding that he had tailored his story to suit his purpose [14]-[24]; that state protection will be available to him if he returns to Bangladesh [30]-[32]; and that internal relocation is viable. [33] For those reasons, the Board dismissed his appeal against the Director’s 1^st Decision.

15.  Another constituted Board conducted an oral hearing for the applicant on 20 April 2023. The applicant had given oral evidence before this Board.

16.  Having considered the evidence, the Board found that the applicant’s evidence was unreliable [46]. However, the Board further found that even if it accepted his evidence, it would still dismiss his appeal as relocation is viable [51] and he has no evidence to show that his life will be at risk if he returns to Bangladesh. [53]-[54] The Board, by the Board’s 3^rd Decision, therefore dismissed his appeal against the Director’s 2^nd Decision.

Application for leave to apply for judicial review of the Board’s Decision

17.  The applicant has filed Form 86 dated 29 August 2023 for leave to apply for judicial review of the Board’s 3^rd Decision.

18.  In the grounds in support of his application, the applicant has raised that the adjudicator acted in a procedurally unfair manner without properly assessing his credibility. The applicant stated that the court has the power to interfere with the Board’s finding of the facts.

DISCUSSION

19.  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 Decisions 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).

20.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

21.  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.”

22.  The applicant has not raised any ground to challenge the Board’s 1^st Decision. Nor does this Court find any faults on the part of the Board in coming to its decisions on the facts of the case.

23.  Those grounds under paragraph 21 are his bare assertions without any evidence in support. They are not valid ground to challenge the Board’s 3^rd Decision.

24.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s 3^rd Decision.

DISPOSITION

25.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s 3^rd Decision. Accordingly, I dismiss his application.