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

HCAL 1048/2024

[2025] HKCFI 6309

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1048 of 2024

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 the Applicants’ submissions in open court.

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review be granted.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 3 July 2024 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/Non-refoulement Petitions Office (the “Board”) dated 25 June 2024 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 23 February 2024 (the “Notice”), refusing his application for non‑refoulement protection.

The Applicant’s claim

2.The Applicant is a Bangladeshi national. His personal background, the factual background leading to the present application, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. The hyperlink to the Board’s Decision is included below[1] for reference. In gist, he claims he will be harmed or killed by members of the Awami League (the “AL”) because of his support for the Bangladesh National Party (the “BNP”) and by the Bangladeshi police because of some false charges, including murder.

The Board’s finding

3.The Board accepted that the Applicant’s account of events leading to his claim for non-refoulement protection is consistent and credible. Despite the assaults by the AL people and the verbal threat from an AL leader, the Applicant continued to stay in the same house with his family members and work in his hometown. He did not flee from Bangladesh at the earliest opportunity and did not seek further assistance from the police, locally or from other regions or higher authorities. The Board was not convinced that the extent of injuries and ill-treatment suffered by him attained a minimum level of severity to invoke protection under BOR 3 Risk ground. It found there is not a genuine and substantial risk that he will be killed or harmed by the AL leader and his underlings. It accepted the country of origin information that he has many options for relocation in Bangladesh where it would be very difficult for the AL leader and his underlings to locate him.

4.Applying the law applicable to non-refoulement protection to the above finding of facts, the Board found the Applicant is not entitled to non-refoulement protection under any of the applicable grounds. Hence, it dismissed his appeal against the decision of the Director in the Notice.

Grounds for judicial review

5.At the hearing, after the legal principles applicable to judicial review had been explained to him, the Applicant said he had no complaint about error of law, procedural unfairness or irrationality in the Decision and leave it to the Court to look for those vitiating elements for him. He submitted that what he told the Board is true. He emphasized that if he returned to Bangladesh, he will be killed because the police had framed him for some false charges, including one of murder.

Overall scrutiny

6.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM. With respect to the Board, it appears that the Board has overlooked two things.

7.First, the Board found the Applicant’s case consistent and accepted his evidence. On that basis, it assessed the Applicant’s case in respect of the threat from the AL. It noted the Applicant’s claim about the false charges and his evidence that he had been detained, released on bail, that no further action had been taken by the police before he left Bangladesh and that his mother told him that a warrant for his arrest had been issued. It never rejected these evidence. By its unqualified statement of finding, it appears that the Board accepted these evidence as well apart from those relating to the threat from Awami League. But it made no finding about this source of harm and risk. There may be nothing in this claim, but it is a finding which this Court may not make in place of the Board.

8.Second, the Board also erred in its finding about availability of internal relocation. While it is open to the Board to find that there may be many locations in Bangladesh where the Applicant could relocate to avoid his persecutors it appears that, the Board had not considered the Applicant’s personal background and had not made a finding that in view of his personal background it would not be unreasonably harsh to expect him to relocate before coming to the conclusion that he could so relocate to avoid the harm and risk. Again, this is a finding which this Court may not make in place of the Board.

9.It is therefore arguable that the Board had fallen into all three errors of law, procedural unfairness and irrationality.

Conclusion

10.Leave is therefore granted to the Applicant to apply for judicial review of the Board’s Decision.

11.The Applicant is reminded to follow the standard directions set out below within 14 days of this decision. If he fails to comply with the directions, the leave granted will lapse on the expiration of the said 14 days’ period.

Dated the 19^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