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

HCAL 1326/2025

[2026] HKCFI 1864

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1326 of 2025

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 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 30 May 2025 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.The applicant appeared before the Court on 16 March 2026.

The applicant

3.The applicant is a national of Bangladesh.  He is an illegal immigrant.  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 people of the Awami League (“AL”) because of his affiliation with the Jamaat-e-Islam.

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/2025/HCAL001326_2025_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 31 December 2024 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 25 February 2025, 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 had not submitted any evidence to support his claim. [25] & [36]

(2)   It is unconvincing that AL people intended to harm or kill the appellant as he belonged to Jamaat. [37]

(3)   Any future risk as suggested by the applicant is his own speculation only. [38]

(4)   There was no evidence that the state was involved. [54]

(5)   At most, the threats from the AL people originated from private disputes between the applicant and the AL people and the applicant did not suffer any physical injuries or mental suffering from the AL people of the requisite severity. [55]

(6)   The applicant did not seek police protection.[57]

(7)   There was no evidence that the state will not protect the applicant, if required.

(8)   The circumstances of the applicant failed to meet the requirements of the applicable risks.

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 10 June 2025 for leave to apply for judicial review of the Board’s Decision.

11.In support of his application, the applicant has raised the grounds below.

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

(2)   The Board had acted in a procedurally unfair manner as he was not given a fair chance to make submissions and it had relied on the source of news which is not officially recognized or is simply outdated.  The Board also failed to give sufficient weight to documentary evidence such as newspaper articles and failed to consider how the stroke had affected his memory.

(3)   The Board’s Decision is unreasonable, irrational or procedurally unfair.

(4)   The Board failed to meet the greater care and duty owed to a self-represented claimant.

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 that he had told the Board his full story.  But the Board did not accept his evidence.

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.The grounds under paragraph 11 are bare assertions without any evidence in support.  The Court of Appeal had held that such grounds are not valid to challenge the Board’s Decision[1]. The issue of stroke affecting his memory was not even mentioned in the Board’s Decision.

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 15^th day of April 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