UDDIN ARMAN ZIA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1313/2023

[2025] HKCFI 3252

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1313 of 2023

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 20 June 2023 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing his appeal against the Director’s Decision on his subsequent claim application.

2.  The applicant asked for a hearing. He appeared before the Court on 18 June 2025.

The applicant

3.  The applicant, aged 58, is a national of Bangladesh. On 9 February 2015, he surrendered to the Immigration Department and admitted he had entered Hong Kong illegally.

4.  According to the applicant, the Director allowed him to make subsequent claim, for which he relied on the facts of his previous claim, supplemented by additional materials and information he had gathered from Bangladesh.

5.  The primary facts of his previous claim and the subsequent claim are that if refouled, he will be harmed or killed by members of the Awami League (“the AL”) because he had been a member of the Bangladesh Jamaat-e-Islami, the AL’s rival political party. There had been 3 occasions where the AL members came to his family house and to his shop in Dhaka to look for him; and on the third occasion, had taken him to a premises where he had to call his brother to bail him out. On all of those occasions, he was not injured physically. Those people had threatened with death. He was also told that a charge had been falsely laid against him. Those are the main reasons that he left Bangladesh for Hong Kong.

6.  Details of his claim are set out at paragraphs 38-69 of the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001313_2023_files/the_Board's_Decision.pdf.

The Director’s Decisions

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.  By way of the Notice of Decision dated 21 January 2016 (“the Director’s Decision”) and the Notice of Further Decision dated 20 June 2017 (“the Director’s Further Decision”) (collectively called the Director’s Decisions), the Director rejected his claim on Torture risk, BOR 3 risk, Persecution risk and BOR 2 risk respectively.

The Board’s Decision

9.  The applicant appealed the Director’s Decisions to the Board. On 23 April 2023, the Board conducted an oral hearing for his appeal. The applicant had given oral evidence before the Board.

10.  Pausing here, it will be appropriate to point out that the Board had advised the applicant that he was not obliged to give evidence, or answer questions, and that he was free to make his own decision about whether, or not, to give evidence. [24] The Board should have alerted him the statutory requirements under section 37ZA(1) and section 37ZD of the Ordinance.[1] Otherwise, the Board may be seen as misleading the applicant if the Board takes into consideration those factors under the statutory provisions to assess his credibility. However, this issue does not affect the Board’s Decision as the applicant had elected to give oral evidence at the hearing.

11.  Having considered the evidence, the Board found the facts below.

(1)  On the totality of the evidence, the alleged 3 incidents did not take place. [78]

(2)  The Board did not accept the applicant’s explanation for the discrepancies of his evidence.[104]

(3)  The Board did not attach any weight to the documentary evidence and medical reports produced by the applicant. [105]

(4)  The applicant’s subsequent claim failed on all applicable risks.

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

12.  The applicant has filed Form 86 dated 31 July 2023 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)  He was not given sufficient time to prepare his case for appeal. But he had answered all the questions from the Board.

(2)  The Board failed to notify him of its Decision by phone.

(3)  The Board had relied on the source of new, which are not officially recognized or are simply hearsay.

(4)  The Board should have gone to his country to understand his situations.

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 the Board’s Decision was not wrong, except it did not accept his evidence.

16.  In view of his oral submissions before the Court, it will not be necessary to deal with those grounds under paragraph 12 in detail. Suffice it to say, they are not valid to challenge the Board’s Decision as the Board was not obliged to notify him of its decisions by phone and the Board might rely on the country of origin information for its assessment of the applicant’s application.

17.  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.”

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.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1