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

HCAL 1075/2025

[2025] HKCFI 5168

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1075 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:

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 15 April 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 did not ask for a hearing.

The applicant

3.The applicant is a national of Bangladesh. He is an illegal immigrant, entering Hong Kong from China in June 2023. He lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, he will be harmed or killed by members of the Awami League (“AL”) because he refused to join them and by his creditors because he was unable to repay his loans. He was assaulted by the AL members, though the injuries were not serious and he did not receive medical treatment from hospital. His creditors had threatened to kill him if he did not repay the loans.

4.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/HCAL001075_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

5.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”).

6.By way of Notice of Decision dated (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 3 April 2025, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board’s questions.

8.Having considered the evidence, the Board found below.

(1)  The Board accepted the applicant’s evidence. [76]

(2)  However, the Board took the view that on his evidence, there was no substantial grounds to believe that neither his creditors nor the AL members had any real intention of harming or killing him. [77]

(3)  The Board was not convinced the injuries he had sustained had attained a minimal level of severity for BOR risk. [78]

(4)  There is not a genuine and substantial risk that he will be killed or harmed by the AL people if he returns to Bangladesh. [79]

(5)  Since the AL is out of power, its members no longer have access to government resources to locate him. It is unlikely that anyone will be able to locate him. [82]

(6)  There are alternative places of safety in Bangladesh to avoid the AL members and the creditors. [83]

9.For the reasons above, the Board dismissed his appeal and affirmed the Director’s Decision.

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

10.The applicant has filed Form 86 dated 8 May 2025 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant complained that the Board did not given true decision and he wanted to talk to the adjudicator again.

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.From the evidence, it seems that the Board was quite right to have come to its conclusions.

16.The ground under paragraph 11 is not valid to challenge the Board’s Decision. He has not defined what he meant by not giving him the true decision. This Court has no power to refer him to talk to the adjudicator again.

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 6^th day of November 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