Biswas Mohammad Abdul Alim v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3111/2019

[2025] HKCFI 3286

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3111 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 absent 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 16 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. However, he was absent at the hearing on 18 June 2025. I shall deal with his application on the papers.

The applicant                         

3.The applicant, aged 43, is a national of Bangladesh. He sneaked into Hong Kong illegally on 19 October 2014 and surrendered to the Immigration Department on 21 October 2014. He raised a non-refoulement claim by written representation on the basis that, if refouled, he will be harmed or killed by (i) people of the Awami League (“AL”) because he was a member of its rival party, the Bangladesh Nationalist Party (“BNP”), and (ii) the family of a victim, Sentu, who was killed in a traffic accident as he was a pillar passenger of the motor bicycle driven by the applicant.

4.According to the applicant, since 2013, the AL people came to his shop and demanded extortion money. They vandalized his shop if they were not paid. They were protected by police as AL was the ruling party. Sentu was his friend. One day, Sentu and the applicant’s brother were the pillar-passengers of a motor bicycle driven by the applicant. On the road, a van ran into the applicant’s motor-bike and since Sentu as the last pillar-passenger, he was killed instantly. There was a made-up story that he had thrown Sentu out of his motor-bike and ran over him. People believed this story and petitioned for his arrest. Police were looking for him. He had gone to India to avoid them. Later, he returned to Bangladesh because he had no right to stay in India. In August 2014, he left Bangladesh for China, from where he sneaked into Hong Kong illegally.

5.Details of his claim are set out at paragraph 6 of the Notice of Decision dated 28 September 2018 (“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 dismissed the applicant’s claim. The Director found that first, the low frequency and intensity of ill-treatment from his enemies and the Bangladeshi police in the past is indicative of a small future risk of harm upon his return to Bangladesh; second, state protection will be available to him; and third, internal relocation is viable. [15]-[20]

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 2 May 2019, the Board conducted an oral hearing for his appeal and the adjudicator had made extensive enquiries on the applicant’s evidence.

9.Having considered the evidence, the Board had concerns about the applicant’s claim. [76]. The Board did not consider the applicant to have been a credible witness. [82]. The Board further found that the applicant’s evidence implausible [83] & [85], inconsistent [84], very confused [86], and even contradictory [87] & [88]. Besides, the applicant did not produce any documentary evidence in support of his claim. [90]. The Board finally made the findings below:

“91. Having carefully considered all of the claims and evidence before it including cumulatively, and for the reasons set out above, the Board is not satisfied that the Appellant has provided a truthful or reliable account, and essentially rejects the [sic] his account in its entirety.”

10.For those reasons above, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003111_2019_files/the_Board's_Decision.pdf.

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

11.The applicant has filed Form 86 dated 21 October 2019 for leave to apply for judicial review of the Board’s Decision. He did not set out any ground in Form 86 in support of his application.

12.In his affirmation in support of his application, the applicant had also raised no valid reason to challenge the Board’s Decision.

DISCUSSION

13.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).

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.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.”

16.The applicant has raised no valid ground to challenge the Board’s findings.

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 2^nd day of September 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