Case Document

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HCAL 1352/2019

[2025] HKCFI 3810

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1352 OF 2019

BETWEEN
	Bapari Sobuj	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 30-year-old national of Bangladesh who last entered Hong Kong illegally on 14 June 2013 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a torture claim 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-Isami (“JEI”), 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 Village Sholpara, District Shariatpur, Bangladesh. In 2013, he became a JEI member while he was still attending Islamic school and supported JEI by regularly attending their local meetings and activities.

3.However, since the Applicant’s refusal to join the AL as requested by his neighbour, Rob who was an AL member, he was attacked on two occasions by Alamin and Arif who the Applicant knew from his neighbourhood as well as other men who were affiliated with Rob and AL.

4.In the first attack in March or April 2013, the Applicant was beaten by them with wooden stick and suffered cuts and bruises all over his body. One month later the Applicant encountered the same group of men again in a local market and was attacked and suffered a cut to his legs by one of them with a long knife which required stitches. While the Applicant was in hospital, Alamin and Arif visited the Applicant’s home and threatened his parents to kill him if they see the Applicant again.

5.After being discharged from hospital, the Applicant moved to his aunt’s place in Narayangonj, Dhaka for about a month before departing Bangladesh for China, from there he later sneaked into Hong Kong and then 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 25 May 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 26 June 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 found no substantial grounds for believing that there will be any real and substantial risk of harm from the local AL supporters upon his return to Bangladesh due to the low intensity and frequency of past ill-treatment from them, that in the absence of any evidence of any pursuit by them of him since his move away from his home district in 2013 and that it is not accepted that they would still have any adverse interest in him after all these years, 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 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, Khulna or Dhaka where he had stayed before without incidents and where it would be difficult if not impossible for anyone to locate him.

8.On 6 July 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 with the assistance of an interpreter on 15 February 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 24 April 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found material inconsistencies, discrepancies and contradictions in the Applicant’s evidence that it did not consider him to be a truthful witness, that it rejected his claim of fear of harm from the AL people that caused him to leave his country to come to Hong Kong for protection, and concluded that he had failed to establish that he has any well-founded fear of being subjected to torture or ill-treatment or persecution or that he would face any genuine and substantial risk of such harm upon his return to Bangladesh, and that his claim for non-refoulement protection failed on all applicable grounds.

10.On 20 May 2019 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 asserted that AL is still in power but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application. 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.

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 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 the Director in his decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, a decision also agreed and confirmed by the Board, 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 Bapari Sobuj 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 12372/18/7/122/B1373 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1599/18 (formerly RBCZ 2002602/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)