Karim Md Rejaul v. Torture Claims Appeal Board

HCAL 764/2021

[2026] HKCFI 2614

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 764 OF 2021

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:

                        Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 48-year-old national of Bangladesh who entered Hong Kong illegally in April 2014 and was arrested by police on 21 April 2014. 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 after his claim was rejected, he then raised a subsequent claim based essentially on the same or similar facts.

Previous Claim

2.The Applicant was born and raised in Village Char Khan Khanapur, District Rajbari, Bangladesh. After leaving school he worked as a bus driver in his home district, and supported BNP regularly attended their local meetings and activities.

3.One day in early 2010 he had an argument with a local AL supporter Shahidul during which he lost his temper and beat Shahidul severely with a wooden pole that Shahidul suffered serious injuries, and was subsequently taken to a local hospital for medical treatments.

4.On the following day the Applicant was told by his friends that Shahidul’s fellow AL supporters were furious about his attack of Shahidul and were looking to kill him in revenge, and so the Applicant fled from his home to take shelter in an uncle’s place in Chasrail, Madhukhali.

5.For the next few years the Applicant managed to find work to support himself in Chasrail without incidents until one day in January 2014 when he was confronted by 3 AL supporters who were from his home village and attacked him with hockey sticks, but he managed to flee from the scene to hide in the forest, and after the assailants had left that the Applicant went to a local hospital to receive medical treatments.     

6.After the incident the Applicant felt it was no longer safe to remain in Bangladesh and therefore made arrangements to leave the country, and several weeks later he departed for China, and from there he later sneaked into Hong Kong in April 2014, and upon his subsequent arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 4 September 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.By a Notice of Decision dated 29 December 2015 and a Notice of Further Decision dated 23 February 2017 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”).

8.In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local AL supporters upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than the usual harassments and intimidations common between rival supporters in Bangladesh, 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 168 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.

9.The Applicant’s appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions was then dismissed by the Board on 12 June 2017 after hearing him in evidence and submissions and upon finding no merits in his claim or appeal, and also confirmed the Director’s decisions.

10.His subsequent application for leave to apply for judicial review of the Board’s decision was also refused by Deputy High Court Judge Woodcock (as she then was) on 23 March 2018 upon finding no ground for his intended challenge had been put forward by the Applicant, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no prospect of success in his intended application (HCAL 403/2017 [2018] HKCFI 567).

11.The Applicant’s appeal against the court’s decision was then dismissed by the Court of Appeal on 13 August 2018 (CACV 85/2018 [2018] HKCA 498), while his Notice of Motion for leave to appeal against the Court of Appeal’s decision was also dismissed by the Court of Appeal on 28 September 2018 ([2018] HKCA 628), and then by the Appeal Committee of the Court of Final Appeal on 24 January 2019 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Subsequent Claim

12.Some 8 months later in September 2019 the Applicant requested to make a subsequent claim to the Director on the basis that in his previous claim he had omitted to mention an earlier incident prior to his encounter with the AL supporter Shahidul in 2010 that when the Applicant was then a member of the BNP’s youth wing Jubo Dal in Khankhanapur that he was attacked by another group of AL supporters, but which he did not mention in his previous claim as he did not suffer any serious injuries in that incident, but that as recently as in 2019 that he had been informed by his wife in Bangladesh that those local AL people are still looking for him everywhere in Bangladesh that he still fears of being harmed or killed upon his refoulement.

13.Notwithstanding the constraints on a claimant who has previously made a non-refoulement claim to make another or subsequent claim as stipulated by Section 37ZO of the Immigration Ordinance, somehow the interviewing immigration officer allowed the Applicant to make a subsequent claim on the bases as noted above with legal representation from DLS, and proceeded to again consider his such subsequent claim under all the applicable grounds.

14.By a Notice of Decision dated 6 March 2020 the Director again rejected the Applicant’s subsequent claim on all applicable grounds after taking into account of all the relevant circumstances of both his previous claim and subsequent claim and upon making the same findings that the level of risk of harm from those local AL supporters upon his return to Bangladesh is low, that the behaviour of those local AL supporters did not show any real intention to seriously harm or kill the Applicant, that in the absence of any official involvement that state or police protection would be available to the Applicant, and that relevant COI show that reasonable internal relocation are available in Bangladesh that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other parts of the country away from his home village in large cities where it would be difficult if not impossible for anyone to locate him.          

15.On 16 March 2020 the Applicant again lodged an appeal to the Board against the Director’s decision, and for which he again attended an oral hearing on 21 May 2020 before the Board during which he gave essentially the same evidence and answered questions raised of his claim by another Adjudicator for the Board. On 17 May 2021 his appeal was again dismissed by the Board which also confirmed the Director’s decision.

16.In its decision[1] the Board accepted the Applicant’s claim of having supported BNP in the past and had had some disputes with some of the local AL supporters prior to his departure of Bangladesh in 2014 but found that he had significantly exaggerated his role in BNP and no reliable evidence of any real involvement in any serious fight or attacks between him and those AL supporters or that they had had any adverse interest in him or would have such adverse interest in him after all the years since he left the country in 2014, 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.    

17.On 25 May 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but again no ground for seeking relief was given in his Form or his supporting affirmation of the same date other than just a bare assertion that the decision is unreasonable as the Board failed to properly consider the matters raised in his claim but without providing any details or particulars or elaboration as to how it did so, nor was he able to do so at the hearing of his application. As such, and in the absence of any error of law or irrationality 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 for his intended challenge of the Board’s decision.

18.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.

19.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions in both his previous and subsequent claims that the risk of harm as alleged by him even 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.                

20.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 subsequent claim.

21.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, I therefore refuse to grant leave and accordingly dismiss his application.

Dated the 7^th day of May 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