Rahman Fazlur v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3338/2019

[2025] HKCFI 3352

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3338 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 1 November 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 4 July 2025.  I shall deal with his application on the papers.

The applicant                       

3.The applicant, aged 34, is a national of Bangladesh.  According to records, the applicant was arrested in 21 December 2014 for illegal remaining. In due course, the applicant lodged his non-refoulement claim.

4.The applicant’s claim is 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 Islami Chhatrashibir.

5.According to the applicant, he was often threatened by a gang of around 20 people to join AL, but no mention of any physical harm was inflicted on him.  The applicant then fled.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 24 October 2018 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 state would not benefit from their ill-treatments or threats made on the applicant, and the claimed fear was not imminent or foreseeable [12]; state protection was available [13-15]; and internal relocation alternatives were available and reasonable [16-23].

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.  At the hearing, the applicant confirmed that all the claims were true, complete, and accurate. [40-57]

9.Having considered the evidence, the Board found that the applicant was partly credible and partly not credible as a witness [66]  but concluded that there was no reason for the applicant to fear any kind of harm from the AL and the suggestion of any risk was far-fetched and fanciful [80].  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.  See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003338_2019_files/the_Board's_Decision.pdf.

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

10.The applicant has filed Form 86 dated 8 November 2019 for leave to apply for judicial review of the Board’s Decision.  The applicant included grounds, which are summarized as follows: the Board was in breach of procedural fairness and the Board significantly relied on the source of news, which was not official recognized or was simply hearsay. 

11.In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

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.

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.Those reasons under paragraph10 are his bare assertions without any evidence in support.  The applicant has raised no valid ground to challenge the Board’s findings.

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

DISPOSITION

17.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