Case Document

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HCAL 630/2021

[2025] HKCFI 2629

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 630 OF 2021

BETWEEN
	Chowdhury Monjur Hossain	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 40-year-old national of Bangladesh who entered Hong Kong illegally on 28 January 2020 and surrendered to the Immigration Department on 27 February 2020 when he raised a non-refoulement claim for protection on the basis that if he returned to Bangladesh he would be harmed or killed by certain local supporters of the political party Awami League (“AL”) as he supported their rival Jamaat-e-Islami (“JIP”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Fuler Nowri, Gunobati, Chauddagram, Comilla, Bangladesh. After leaving school he worked as a salesman before owing his own shop selling electronic goods in his home district, got married and raised a family with 2 children, and supported JIP regularly attended their local meetings and activities without holding any official post in the party.

3.One day in 2015 some local AL supporters came to his shop demanding monetary contributions for AL and for him to leave JIP to join AL, and when the Applicant refused, they warned him that there would be serious consequences.

4.Later in 2016 a group of AL supporters came again to demand the Applicant to join AL, and when he again refused, they attacked him by punching and kicking him for several minutes before they left, leaving him with cuts and bruises all over his body.

5.After several more beatings by those local AL supporters between 2017 and 2019, the Applicant in September 2019 closed down his shop and moved to stay at his grandparents’ place, but one night in November 2019 a group of AL supporters came to his grandparents’ house to again demand the Applicant to join AL, and when he refused, they again beat him and vandalized the house, and after they left, those AL supporters then made a false charge to the police against the Applicant for illegally possessing firearms in the house, for which the Applicant was arrested for interrogation, but was eventually released on bail.

6.Thereafter the Applicant felt it was no longer safe to remain in Bangladesh, and so on 23 January 2020 he departed for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 11 August 2020 and attended screening interview before the Immigration Department with legal representation.

7.By a Notice of Decision dated 31 August 2020 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local AL supporters upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him or any political reason for them to specifically target him given that he was just an ordinary JIP supporter without any official post in the party, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that in Bangladesh the Applicant will be entitled to defend himself with legal representation in court of law in a fair trial against any false charge which might be brought against him, while reasonable internal relocation alternatives are also available in Bangladesh with a large population of 159 million people spread across a vast territory of more than 140,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Khulna where it would be difficult if not impossible for anyone to locate him.

9.On 11 September 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 24 November 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 28 April 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board accepted the Applicant’s claim of fear of harm from those local AL supporters due to their political disputes but found no evidence of any real intention of them to seriously harm or kill him or of any official involvement that state or police protection would be available to the Applicant upon his return to Bangladesh as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located, while there are laws in Bangladesh to protect him with the right to defend himself in a court of law under a fair trial with legal representation against any false charge which might be brought against him that the Board concluded that the Applicant’s claim for non-refoulement protection failed on all applicable grounds.

11.On 5 May 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

12.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15.Moreover, the Applicant recently on 18 March 2025 filed an affirmation requesting to withdraw his application as his problem in his home country has been resolved by his family that it is now safe for him to return to Bangladesh.

16.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that it is safe for him to return to his home country, I accordingly dismiss his leave application.

Dated the 26^th day of June 2025

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 26 June 2025 Chowdhury Monjur Hossain Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 26 June 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 17201/20/9/20/B2177 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 465/20 (formerly as RBCZ 10392/20) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)