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

HCAL 3101/2019

[2025] HKCFI 2736

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3101 OF 2019

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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 8 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 30 April 2025. I shall deal with his application on the papers.

The applicant

3.  The applicant, aged 42, is a national of Bangladesh. According to records, the applicant illegally entered Hong Kong on or around April 2007 and was arrested on 19 April 2009 for illegal remaining.

4.  The applicant lodged his torture claim on 21 April 2009, which was refused by the Director on 30 January 2014. In due course, the applicant lodged his non-refoulement claim.

5.  The applicant’s claim was based on his fear of being harmed or killed by members of the Awami League (“AL”) as he refused to join them.

6.  According to the applicant, the AL threatened and assaulted the applicant in three separate incidents. First, 7 to 8 people went to the applicant’s shop and assaulted him. In around mid-2005, AL people again threatened the applicant with a pistol, resulting in the applicant being hospitalized for a week. In around mid-2006, 10 to 11 AL people arrived at his shop and the applicant was detained and assaulted. The applicant was hospitalized for 4 days. Details of his claim are set out at paragraph 10 of the Notice of Decision dated 29 June 2018 by the Director (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 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”).

8.  Although the applicant’s claim for Torture risk was assessed on 30 January 2014 and rejected, because there were new claims and evidence provided in his supplementary claim form and screening interview, the Director assessed on all applicable grounds [4].

9.  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 overall injuries suffered were not as serious as described and could hardly be regarded as severe, the acts of harm were not the stance of the whole government, the nature was a private dispute, and the low intensity and low frequency of ill-treatment in the past is indicative of low future risk of serious harm [17-20]; state protection was available [21-26]; and internal relocation alternatives were available and reasonable [28-31].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 11 June 2019, the Board conducted an oral hearing for his appeal.

11.  Having considered the evidence, the Board found that the applicant had not substantiated any of his grounds [84, 92, 97, 99]. In any event, the Board found that internal relocation was available and reasonable to the applicant [81, 96]. In conclusion, the Board held 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

12.  The applicant has filed Form 86 dated 21 October 2019 for leave to apply for judicial review of the Board’s Decision. The applicant did not put forth any valid grounds for his application.

13.  In his affirmation in support of his application, the applicant exhibited the Director’s and Board’s Decisions but again did not put forth any ground.

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.

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 applicant has raised no valid ground to challenge the Board’s findings.

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.