Rana Md Masud v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3331/2019

[2025] HKCFI 3046

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3331 of 2019

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;

Order by Deputy High Court Judge K.W. Lung:

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 23 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.  He appeared before the Court on 4 July 2025.

The applicant

3.The applicant is a national of Bangladesh.  According to records, the applicant sneaked into Hong Kong on 23 October 2018 and surrendered to the Immigration Department on 25 October 2018.  In due course, the applicant lodged his non-refoulement claim.

4.The applicant’s claim was based on his fear of being harmed or killed by members of the Awami League (“AL”) as the applicant was a member of the Bangladesh Nationalist Party (“BNP”).

5.According to the applicant, in 2007, he became a special member of BNP’s office in Jhenaidah.  In 2009 he was attacked by 4 to 5 AL people and was questioned for not joining AL.  In the winter of 2010, a group of 3 AL threatened the applicant that if he did not leave BNP, they would attack and kill him.  Further attacks on the applicant were made in 2011, 2015, 2017, and 2018.  The applicant fled to Dhaka then to Mainland China.  Details of his claim are set out at paragraphs 5-50 of the Notice of Decision dated 29 April 2019 by the Director (the “Director’s Decision”).

The Director’s Decision

6.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”).

7.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 level of risk of harm from AL was assessed to be low, the AL had no real intention to cause any serious harm or to kill the applicant as they had ample opportunities to do so but chose not to and the attacks did not attain a minimum level of severity that non-refoulement claim was warranted [56-61]; that state protection was available [62-75]; and that internal relocation alternatives were available and reasonable [76-82].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 12 September 2019, the Board conducted an oral hearing for his appeal.  The Board had considered and assessed his evidence. [76]-[82]

9.Having considered the evidence, the Board found that the applicant was partly credible and partly not credible as a witness [68] but concluded that there was no reason for the applicant to fear any kind of harm from the AL or anyone else [85].  In any event, the Board considered that state protection would not be inadequate or withheld from the applicant [87-89] and internal relocation was reasonable and viable for the applicant [90-93].  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

10.The applicant has filed Form 86 dated 7 November 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant exhibited the Board’s Decision, and included a handwritten note of his grounds which are summarized as follows: the Board did not provide the applicant with a lawyer, and complained about his interpreter that he advised him not to say anything or the adjudicator would not consider his problems.

DISCUSSION

12.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).

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  Before me, I asked the applicant if he considered the Board’s Decision was wrong.  He said “no”.

14.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.”

15.In view of the applicant’s oral submissions before the Court, his grounds in paragraph 11 have become insignificant.  He was not entitled to free interpretation service or legal advice at all stages of the proceedings^[1].  His complaint against the interpreter before the Board is contradictory to the records in the Board’s Decision.  The adjudicator had asked him a lot of questions and he had answered them.  [29]-[52] See the hyperlink for the Board’s Decision https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003331_2019_files/the_Board's_Decision.pdf.

16.The applicant has raised no specific reasons to challenge the Board’s Decision.

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

DISPOSITION

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

Dated the 14^th day of August 2025.

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