Case Document

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HCAL 24/2020

[2025] HKCFI 3813

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 24 OF 2020

BETWEEN
	Md Sekandar Miah	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;

Order by Hon S T Poon J:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 51-year-old national of Bangladesh who last entered Hong Kong illegally on 11 May 2009, and was arrested by police on 14 May 2009. After he was referred to the Immigration Department for investigation, he raised non-refoulement claim for protection on the basis that if he returned to Bangladesh he would be harmed or killed by his cousins and/or certain members of the Awami League (“AL”) as he supported their rival Bangladesh Nationalist Party (“BNP”), and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Kasaitol, P.S. Kotwali of Babu Bazar, Dhaka, Bangladesh. The Applicant later got married and raised 2 children and he was uneducated but he has been a general worker in his home district.

3.The Applicant and his brother each inherited a piece of land after his parents passed away, after the Applicant’s 3 cousins, who had connections to the local AL members, bought his brother’s piece of land, in mid-2007 they coveted the Applicant’s portion as well and organised mobs to cause harassments and to throw stones and garbage at the Applicant’s house built on his piece of land in an attempt to force him to move out.

4.Subsequently, the 3 cousins made death threats against him after he refused their proposal to purchase his land, and then in October 2007, a man who was sent by one of his cousins came to the Applicant’s home and punched and slapped him with bare hands for his such refusal which caused minor injuries and small cuts to the Applicant.

5.Fearing for his safety, on 29 November 2007 the Applicant departed Bangladesh for China, and after staying there for around one and a half year he later sneaked into Hong Kong, and upon his arrest by the police he raised his torture claim, and after it was rejected by the Immigration Department, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 12 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 16 November 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

7.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 his 3 cousins and/or the 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 his 3 cousins to seriously harm or kill him or of any AL members to specifically target him for harm, that in any event it was a private land dispute between him and his 3 cousins only without 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 reasonable internal relocation alternatives are available in Bangladesh with a large population of 157 million people spread across a vast territory of more than 130,000 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 Chittagong or Khulna where it would be difficult if not impossible for anyone to locate him.

8.On 27 November 2018 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 21 November 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 27 December 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his 3 cousins that caused him to leave his country to come to Hong Kong to seek protection, that there was no reliable evidence of any real intention of any AL members to specifically target him or to seriously harm or kill him upon his return to Bangladesh, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant from any harm from his 3 cousins and/or AL members as well as reasonable internal relocation alternatives for him to move safely within the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

10.On 3 January 2020 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 in which he just stated that he rejects the decision as it disregarded the danger and threats that he faces in his home country but without putting forth any proper ground for his intended challenge, nor was he able to provide any further explanation at the scheduled hearing. 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 of the Board’s decision.

11.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. 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.

12.In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning as set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.

13.Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim even if real are localized ones 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.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.

Dated the 29^th day of August 2025.

(Yau Shiu-lun)
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 29 August 2025 Md Sekandar Miah 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 29 August 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 14580/18/11/423/B1719 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 4005/18 (formerly RBCZ 2001834/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)