Hossain Milon v. Torture Claims Appeal Board

HCAL 653/2022

[2026] HKCFI 268

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 653 OF 2022

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 31-year-old national of Bangladesh who entered Hong Kong illegally on 28 January 2020 and surrendered to the Immigration Department on 27 February 2020 when he raised a non-refoulement claim for protection on the basis that if he returned to Bangladesh he would be harmed or killed by certain local supporters of the political party Awami League (“AL”) for supporting their rival Jamaat-e-Islami (“JeI”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in South Sree Pur, Chauddagram, Comilla, Bangladesh. After leaving school he ran a furniture shop in his home district to make his living.

3.In July 2019, he was invited by his neighbours to participate in a meeting held by the local members of JeI to learn about their political philosophy and ideology, but during which he and other participants were attacked by a group of the local AL supporters, and was subsequently arrested by the police for fighting in public, during which he was detained for interrogations for days and was only released on bail after 2 weeks.

4.Upon returning to his home to nurse his injuries sustained from beatings by the police during detention, those AL supporters came to his home looking to kill him for refusing to join their party, but he managed to escape from the back of his home and into hiding.  

5.As a result, the Applicant became fearful for his life, and on 23 January 2020 he departed Bangladesh for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 18 November 2020 and attended screening interview before the Immigration Department with legal representation.             

6.By a Notice of Decision dated 24 February 2021, the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

7.In his decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and doubted the credibility of his claim of fear of harm from any AL supporters given that he was not even a JeI supporter and that there was no political reason for the AL people to have any adverse interest in him, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 164 million people spread across a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Dhaka or Chittagong where it would be difficult if not impossible for anyone to locate him.

8.On 5 March 2021, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 29 April 2022 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 29 June 2022, his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision[1], the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from any AL supporters for any support of rival JeI or for refusing to join their party or for any other reason that caused him to leave his country to come to Hong Kong to seek protection, nor is it accepted that he had ever been arrested by police or beaten by them during any detention or that he had ever been charged by the police prior to his departure from Bangladesh, and concluded that he had failed to establish any well-founded fear of any harm from anyone or that he will face any such harm from anyone upon his return to Bangladesh that his claim for non-refoulement failed on all applicable grounds.    

10.On 25 July 2022 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1) That the Board was in breach of procedural unfairness in that its decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(2) That the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(3) That the Board failed to meet the greater care and duty owned to a self-represented claimant;

(4) That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(5) In dismissing the Applicant’s appeal there is no indication that the Adjudicator interacted with the facts of the Applicant’s claim or conducted any analysis of the supporting documents or turned his mind to the grounds under consideration being the risk of violation of the Applicant’s right to life under BOR 2;

(6) That the Board had significantly relied on source of news not officially recognized or were simply hearsays;

(7) That the Adjudicator had relied on cares which are outdated without considering the dramatic changes with the lack of credible source of information had resulted in making groundless speculations.      

11.These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or which COI were not officially recognized or were hearsays or outdated.  As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

12.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14.Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

15.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

16.Moreover, the Applicant recently on 8 December 2025 filed an affirmation requesting to withdraw his application as his problem in his home country has been resolved that he now wants to return to Bangladesh.

17.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no more problem for him to return to his home country, I accordingly dismiss his leave application.

Dated the 13^th day of January 2026

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