Dabnath Bijoy v. Torture Claims Appeal Board

HCAL 1575/2025

[2025] HKCFI 4276

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1575 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:

Leave to apply for Judicial Review be refused.

THE APPLICATION 

1.The applicant applies for leave to apply for judicial review of the Decision dated 26 June 2025 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. He appeared before the Court on 25 August 2025.

The applicant

3.The applicant is a national of Bangladesh. He sneaked into Hong Kong from China on 25 December 2024 and surrendered to the Immigration Department on 5 February 2025 where he lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by members of the Bangladesh Jamaat-e-Islami (“JEI”), a rival political party of Awami, to which he belonged. They wanted to take revenge upon him.

4.According to the applicant, his enemies are still looking for him.

5.Details of his claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001575_2025_files/the_Board's_Decision.pdf.

The Board’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 Notice of Decision dated 28 April 2025 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 20 June 2025, the Board conducted an oral hearing for his appeal.He had given oral evidence and answered the Board’s questions.

9.Having considered the evidence, the Board found that :

(1)  there was no evidence that the state was involved; [45]

(2)  there was no evidence that Bangladeshi police would not render protection to him; [46]

(3)  internal relocation would be viable; [47]-[53]

(4)  there was no political issues between him and JEI and no revenge was taken by the JEI people against him; [62]

(5)  the applicant had never sought police protection; [65] and

(6)  the applicant had never sustained any injuries. [66]

10.For the above reasons, the Board dismissed the applicant’s appeal and affirmed the Director’s Decision.

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

11.The applicant has filed Form 86 dated 9 July 2025 for leave to apply for judicial review of the Board’s Decision.

12.In Form 86 and his affirmation in support of his application, the applicant has raised the reasons below to challenge the Board’s Decision.

(1)  It is unreasonable because it did not take into consideration his right to life,

(2)  The Board had place excessive reliance on the country of origin information, disregarding his personal background and experience.

(3)  Procedural impropriety and unfair assessment in that the Board unreasonably demanded response to questions and its decisions were irrational.

(4)  Insufficient time and opportunity to present evidence by the Board.

(5)  The Board’s Decision does not contain all the necessary details of his claim.

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. 　Before me, I asked him if he considered the Board was wrong in its decisions. He said that the Board was not wrong. 　This renders his grounds under paragraph 12 insignificant.

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.Those grounds under paragraph 12 are bare assertions without any evidence in support.　 They are invalid to challenge the Board’s Decision.[1] He did not raise the issue of insufficient time for his preparation for the hearing before the Board.

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 18^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