Molla Jibon v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1061/2025

[2025] HKCFI 4625

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1061 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 absent 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 dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 12 August 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 12 November 2024. His application was filed on 6 May 2025, which is late for more than 4 months. This issue will be dealt with below.

2.The applicant did not ask for a hearing.

The applicant

3.The applicant is a national of Bangladesh. He is an illegal immigrant, having sneaked into Hong Kong illegally by speedboat from China on 1 November 2023. He surrendered to the Immigration Department. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by Rajib, who was the leader of Awami League and his people (“his enemies”) because of political dispute.

4.According to the applicant, he was the President of the Alipur Union of the Bangladesh Nationalist Party. Rajib told him to quit and join his party. He refused. He was attacked by 20 people with knives. As a result, he was seriously injured and had to stay in hospital for 9 months.

5.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/HCAL001061_2025_files/the_Board's_Decision.pdf.

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.The Director refused the applicant’s claim for the reason that it was unsubstantiated.

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 12 July 2024, the Board conducted an oral hearing. He had given oral evidence and answered the Board’s questions.

9.Having considered the applicant’s evidence, the Board had made the finding of the facts below.

(1)  His evidence were bare assertions, without any object proof in support. [76]

(2)  The Board did not accept that the applicant faces a high-risk of harm should he return to Bangladesh. [85]

(3)  Reasonable state protection will be available to him. [102] & [114]

(4)  Internal relocation is viable and it will not be unduly harsh for him to live in Khulna and Chittagong or other areas of Bangladesh. [108]

(5)  He will not be ill-treated or killed by his enemies if he returns to Bangladesh. [110] & [133]

(6)  The Board accepted that the applicant was assaulted and threatened by his enemies. However, there was no evidence that the state was involved. [112]&[113]

10.For the reasons above, 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 6 May 2025 for leave to apply for judicial review of the Board’s Decision.

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

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.

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.From the Board’s findings, it seems that on the one hand, the Board found that there was no objective proof of the applicant’s case; however, it accepted that he was attacked and threatened by his enemies. However, state protection is available and internal relocation is viable, which will mitigate or neutralize the risks.

17.There is no reason for this Court to interfere with the Board’s Decision.

18.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

19.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 16^th day of October 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