Salim Md v. Torture Claims Appeal Board

HCAL 761/2021

[2026] HKCFI 1519

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 761 OF 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

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 46-year-old national of Bangladesh who entered Hong Kong illegally on 7 September 2019 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, 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”) as he supported their rival Bangladesh Nationalist Party (“BNP”) and/or by the police over some false charges made against him by those AL supporters. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Amtuli, Tungibari of District Munshiganj, Bangladesh. After leaving school he ran a fruit stall in the village market to make his living, and supported BNP regularly attended their local meetings and activities, during which he and his fellow BNP supporters frequently ran into violent conflicts with the local AL supporters.

3.One day in January 2019 some of those AL supporters came to his stall demanding for extortion money, and when he refused to pay they then beat him and vandalized his stall until intervened by other villagers, and thereafter the Applicant was taken to the local hospital for medical treatments.

4.About 2 weeks later one evening those AL supporters came to his home to make threats against him by firing gun shots outside his house that the Applicant was frightened and ran from his home into hiding until those AL people had left.

5.As a result the Applicant became fearful for his life and fled to Sonarong to take shelter in his grandmother’s place, but later when he heard from his family that those AL supporters were still looking for him everywhere and had also made false charges against him to the police, the Applicant then fled to Dhaka, and on 29 August 2019 he departed Bangladesh for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 9 October 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 31 October 2019 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 found no substantial grounds for believing that there will be any real risk of him being harmed by those local AL supporters or the police upon his return to Bangladesh due to the absence of or low intensity and frequency of past ill‑treatment from them, that there is no evidence of any real intention of those local AL supporters to seriously harm or kill him other than the usual harassments and intimidations common between supporters of rival political parties, nor is there any reliable evidence of any adverse interest of the police in him other than hearsays and the fact that he was able to leave the country without any problems, 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 159 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 those local AL supporters to locate him.

8.On 13 January 2020 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 30 September 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 24 March 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision[1] the Board accepted the Applicant’s claim of fear of harm from those local AL supporters as alleged but found no reliable evidence of any real intention of those local AL supporters to seriously harm or kill him other than the usual harassments and intimidations common between supporters of rival political parties in Bangladesh, nor was it accepted that there was any evidence of any adverse interest of the police in him in the absence of any reliable evidence and the fact that he was able to leave the country without any problem, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Bangladesh as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.

10.On 25 May 2021 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 is in breach of procedural fairness in unlawfully fettering its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

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

(3)  That the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  That the Board failed to meet the greater care and duty owed to a self‑represented claimant;

(5)  That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated and with the lack of credible source of information had resulted in groundless speculations that it is safe for him to return to his home country;

(6)  That the Adjudicator reached the wrong decision in assessing the Applicant’s claim without any proper inquiry or careful understanding of his situation;

(7)  That the hearing bundle for his appeal was given to the Applicant just a few days before his appeal hearing before the Board with the majority of the documents in English that he was not given sufficient time to prepare for his appeal due to his limited skill in English or to arrange for their proper translations that he was confused during the hearing before the Board.

11.These are however mostly 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 what source of information relied on by the Board were not officially recognized or were simply 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 for his complaint of being provided with the hearing bundle late with the majority of documents in English thereby giving him insufficient time to prepare for his appeal hearing, the Applicant never provided any documentary evidence in support of his assertions, nor did he raise any such complaints to the Board or request any adjournment at the hearing, while most of the documents such as his own NCF or record of his screening interview before the Director had earlier already been provided to him while he was still having legal representation from DLS. In the circumstances I do not find any merits in this complaint of the Applicant either.

13.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.

14.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, 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.In the premises, and 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 26 January 2026 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.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 March 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