Md Alomgir Hossain and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1781/2020

[2025] HKCFI 6285

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1781 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 Applicants 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 Applicants:

THE APPLICATION

1.The 1^st applicant is the husband (“the husband”) of the 2^nd applicant (“the wife”).

2.The applicants jointly apply for leave to apply for judicial review of the following:

(1)  The decision made on unknown date but notified to applicant on 02 of September 2020.

(2)  Decision dated 22 June 2020 of the Torture Claims Appeal Board (“the Board’s Decision”). Their joint application relies upon the facts of the husband.

3.Item (1) does not have particulars on the party issuing the decision or the contents of the decision. The applicants have not supplied the Court with a copy of such decision. The Court is unable to find it on the court’s file. It is therefore not amenable to judicial review and no order will be made on it. In any event, the decisions that concerned the applicants are the Director’s Decision and the Board’s Decision. The Board’s Decision has superseded the Director’s Decision and is final[1], only subject judicial review of the court. This Court shall therefore deal with the applicants’ application for leave for judicial review of the Board’s Decision.

4.The applicants asked for a hearing. However, they did not appear before the Court on 3 December 2025. I shall deal with their application on the papers.

The applicants

5.The applicants are nationals of Bangladesh. They are illegal immigrants by reason that they came to Hong Kong as visitor on 21 September 2017, but they overstayed since 5 October 2017. They lodged a non-refoulement claim on the basis that, if refouled, they will be harmed or killed by Badsha and his people who were members of the Awami League (“AL”) because he was a supporter of the Bangladesh Nationalist Party (“BNP”). They extorted money from the husband. They threatened and attacked him. They had murdered the husband’s nephew.

6.Details of the facts are set out in the Board’s Decision. See hyperlink.

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001781_2020_files/the_Board's_Decision.pdf

The Director’s Decision

7.The Director considered the applicants’ claims 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 way of Notice of Decision dated 28 December 2018 (“Director’s Decision”), the Director assessed the applicants’ claims jointly on all applicable grounds and dismissed their claims on all applicable risks because they were unsubstantiated.

The Board’s Decision

9.The applicants appealed the Director’s Decision to the Board. On 22 January 2020 and 20 April 2020, the Board conducted an oral hearing for their appeals. The husband and the wife had given oral evidence and answered the Board’s questions.

10.Having considered the evidence, the Board made the findings below.

(1)  It did not accept the applicants’ evidence that they were active members of the BNP, having regard to their complete lack of knowledge about the BNP or its boycott of the 2014 National election. [67]

(2)  It did not accept that the husband was attacked and beaten because of his BNP activities or that his nephew was killed by the AL people for the same reason. [59]

(3)  They failed to establish any basis which would support a conclusion that they face a real risk of serious harm at the hands of the AL members should they return to Bangladesh. [68]-[69]

11.It therefore dismissed their appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review

12.The applicants filed Form 86 on 7 September 2020 for leave to apply for judicial review of the Board’s Decision. The applicants have raised the grounds below in support of their application.

(1)  The Board had unlawfully fettered its discretion by refusing their appeal.

(2)  The adjudicator acted in a procedurally unfair manner.

(3)  The Board’s Decision is unreasonable or irrational or is a result of procedural errors or unfairness.

(4)  The Board failed to meet the greater care and duty owed to them.

13.In the affirmation in support their application, the husband has raised the grounds below:

(1)  The hearing bundle was given them shortly before the Board’s hearing.

(2)  The documents were in English and they did not have sufficient time or means to get translation for the documents.

(3)  The Board did not notify them by phone of the Board’s Decision even though they had made specific request.

(4)  The husband had answered all questions from the Board and it is unreasonable for the Board to say that his evidence was incredible.

(5)  The Board had relied on the source of the news not officially recognized or it is simply hearsay. It had also relied on outdated cases. All these led the Board to speculate that they may return to Bangladesh safely.

(6)  It is unreasonable for the Board to deal with BOR 2 risk without the Director having first dealt with it.

(7)  The Board’s Decision is wrong. It made its decisions without going to Bangladesh to understand their situation there.

DISCUSSION

14.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 applicants’ 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.As to the applicants’ reasons under paragraph 11, they are their bare assertions or opinions without any evidence in support. They are not valid to challenge the Board’s Decision[2]

17.As to the grounds of the supporting affirmation under paragraph 13, Grounds (4), (5) and (7) are their bare assertions. The Board may rely on the country of origin information without physically going to Bangladesh. Ground (1) was not an issue according to the Board’s Decision. In fact, the Board had adjourned the first hearing on 22 January 2020 upon the husband’s request because he was not feeling well. Ground (2) fails because they are not entitled to translation service at every stage of the proceedings as held by the Court of Appeal[3]. There is no legal duty on the Board to notify the applicants of the Board’s Decision under the Ordinance. Ground (3) fails. Ground (6) is a non-issue as the Director had dealt with the BOR 2 risk. See paragraph 4 of the Director’s Decision.

18.The applicants have raised no valid ground to challenge the Board’s Decision.

19.The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial review.

DISPOSITION

20.I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

Dated the 17^th day of December 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