Amin Md Al v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 879/2025

[2025] HKCFI 4046

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 879 of 2025

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:

1.  The extension of time for the application for Judicial Review be refused; and

2.  The application for 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 6 September 2024 of the Torture Claims Appeal Board (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 6 December 2024. His application was filed on 11 April 2025, which is late for more than 4 months. This issue will be dealt with below.

2.The applicant asked for a hearing. He appeared before the Court on 23 July 2025.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Bangladesh. He is an illegal immigrant arrested by police on 27 October 2023. He admitted he had sneaked in Hong Kong on the same day. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by 3 members of the Awami League (“his enemies”) due to a dispute over an investment in a piece of land.

5.According to the applicant, he had joined his enemies in the purchase of a piece of land. After the purchase, his enemies demanded him to transfer his share in the land to them for a small compensation. He refused whereupon his enemies and their people attacked him with hockey sticks and metal rods. He sustained some bone fractures. He reported to police, which did not make any investigation. His enemies threatened him that he would not stay alive.

6.Details of the applicant’s story can be found in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL000879_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

7.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”).

8.By Notice of Decision dated 11 April 2024 (“the Director’s Decision”), the Director refused the applicant’s claim for the reason that it was unsubstantiated.

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 12 July 2024, the Board conducted an oral hearing.

10.Having considered the applicant’s evidence, the Board had made the finding of the facts below, dismissed his appeal and confirmed the Director’s Decision.

(1)  State protection will be available to the applicant if he returns to Bangladesh. [47]

(2)  The applicant’s evidence was inconsistent. [64],[66]

(3)  The applicant’s fear of harm was due to personal reasons and localized. [74]

(4)  The applicant’s evidence was incredible and his alleged risk of harm is low if he returns to his country. [78]

(5)  The state was not involved. [80]

(6)  Internal relocation is viable. [128] – [132]

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

11.The applicant has filed Form 86 dated 11 April 2025 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant said that the Board’s Decision was wrong as the Board had not been to his country to understand his situation.

DISCUSSION

13.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said the Board’s Decision is not wrong.

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 reasons under paragraph 12 are his general assertions without any evidence in support and are not valid to challenge the Board’s Decision. Re: Salim Ahmed [2020] HKCA 244[2]. The Board could rely on the country of origin information instead of going to his country to understand his situation, which the Board had done. There is no reason for this Court to interfere with the Board’s Decision.

17.In the circumstances, 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 extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 5^th 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