Rasel S M Obaidul Hoque v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2064/2020

[2025] HKCFI 5325

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2064 of 2020

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.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 21 July 2020 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 22 October 2025.

The applicant

3.The applicant is a national of Bangladesh. He is an illegal immigrant, having entered Hong Kong illegally by boat on 24 February 2016 and surrendered to the Immigration Department the same day. 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 was a member of the Bangladesh Nationalist Party (“BNP”) and he refused to join the AL. The AL members had threatened him and his family that they would do harm or even kill the applicant. He therefore fled Bangladesh.

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/2020/HCAL002064_2020_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 7 December 2018 (“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 2 September 2019, 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 made the findings below.

(1)  The applicant was unable to produce documentary evidence to prove his BNP membership despite more than one year for him to contact his family in Bangladesh. [59]

(2)  Despite the above deficiency and other minor inconsistencies in his evidence, the Board accepted the applicant’s evidence in support of his claim. [60]-[61]

(3)  However, the Board took the view that there will only be a low risk of harm upon his return to Bangladesh. [70]

(4)  The asserted ill-treatment on the applicant by the AL members had not attained a minimum level of severity. [71]

(5)  The Board did not accept that harm or ill-treatment from the AL members is as imminent and substantial as the applicant had asserted. [73]

(6)  The applicant had stayed out of his country since December 2015. The Board took the view that, even if the AL members had adverse interest on him, such adverse interest would have diminished. [74]

(7)  There was no evidence that the AL members’ threats will materialize. [78]&[80]

(8)  The applicant’s alleged risks are localized and internal relocation is viable. [79]&[96]-[103]

(9)  State protection will be available if he returns to Bangladesh. [94]

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 15 October 2020 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant has not raised any specific reason 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. Before me, the applicant said he had told the Board his full story and not agree with the Board.

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.It is obvious that even the Board accepted the facts in support of the applicant’s claim, for the reasons given above, the Board did not accept that he would face any real risks of harm if he returns to Bangladesh. The applicant has not raised any reason that this Court should interfere with 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 11^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