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HCAL 2269/2019
[2025] HKCFI 120
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 2269 OF 2019
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BETWEEN
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Alam Md Nur |
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: |
9 December 2024 |
| Date of Judgment: |
21 January 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 25 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office 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 9 December 2024.
The applicant
3. The applicant, aged 36, is a national of Bangladesh. He entered Hong Kong illegally on 21 December 2014 and was arrested by the police on the same day. The applicant made a non-refoulement claim on 25 December 2014. The claim was made on the basis that, if refouled, he would be harmed or even killed by members of Awami League (“AL”) and the Bangladeshi authorities.
4. According to the applicant, he became a member of Jamaat Shibir, the youth wing of Bangladesh Jamaat-e-Islami (“JIB”) in about 2008. Shortly thereafter, he was attacked by AL members on one occasion in which he hurt his leg while running away. On 5 May 2013, the applicant participated in a rally (“the rally”), during which the army and the police used force to disperse the crowd. He managed to escape and fled to his friend’s place. Subsequently, the applicant was informed by his mother that the police had been to his home looking for him. Out of fear, he left Bangladesh for China in early December 2014 and sneaked into Hong Kong from Shenzhen on 21 December 2014.
5. The applicant was of the view that he could not seek protection from the police because they worked for AL. He also considered internal relocation not viable because AL members and the Bangladeshi authorities could utilise their nationwide networks and resources to locate him.
6. Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 15 October 2018 (“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 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”);
b. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);
c. 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”); and
d. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).
8. By way of the Director’s Decision, the Director dismissed the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk. The Director found that (i) the harm received by the applicant failed to attain a minimum level of severity [12]; (ii) his claimed fear was based on hearsay information [13]; (iii) his uneventful stay in Bangladesh for 1.5 years after the rally and his successful departure from the country at the border indicated that he was not of adverse interest to the Bangladeshi authorities [14]; (iv) state protection would be available [15]-[18] and (v) internal relocation would be viable [19].
The Board’s Decision
9. The applicant appealed the Director’s Decision to the Board. On 24 May 2019, the Board conducted an oral hearing, during which the applicant made a new claim that there was a terrorism case filed against him in 2010 [24].
10. The Board found there was no adverse action taken by AL against the applicant since 2008, so that the claimed risk was not personal to him. His assertion of being wanted for terrorism could not be given any weight and there was also no supporting evidence for his claim of being sought for anti-government activities. Furthermore, the country of origin information indicated that the applicant should only face a minimal risk of being arrested and disappearing given his minor political and behavioral conduct. In any event, the applicant had never suffered any serious injury and that there was nothing eventful during his departure at the Bangladeshi border [24]-[29], [34]-[58].
11. Based on such findings, the Board rejected the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk [59]-[96]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.
Application for leave to apply for judicial review of the Board’s Decision
12. The applicant has filed Form 86 dated 8 August 2019 for leave to apply for judicial review of the Board’s Decision.
13. In his affirmation in support of his application, the applicant has raised the grounds below:
(1) the adjudicator did not have knowledge of his claim and he had never investigated his claim in Bangladesh;
(2) he did not have a lawyer to assist him to prepare for his appeal; and
(3) he did not have enough time to prepare for the hearing before the Board.
DISCUSSION
14. 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).
15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board was wrong because it did not accept his evidence and he asked this Court to review the Board’s Decision.
16. 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.”
17. The reasons given under paragraph 13 do not assist the applicant. Ground (1) fails because it is only his opinion without any evidence in support. The adjudicator may rely on the COI to understand his situation in his country. Ground (2) fails because the Court of Appeal has held that he is not entitled to free legal assistance all the time throughout the proceedings[1]. Ground (3) fails because there is no record in the Board’s Decision that he had asked the Board to adjourn the hearing for him to prepare the hearing and the Board did not find any problem in respect of the hearing. Furthermore, he has not stated what kind of preparation he had to make for the hearing. The Board was not bound to accept his evidence and nothing shows that the Board was wrong.
18. There is no reason that the Court should interfere with the Board’s finding of the facts.
19. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.
DISPOSITION
20. 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 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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