Das Durjoy v. Torture Claims Appeal Board

HCAL 1461/2024

[2026] HKCFI 3610

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1461 OF 2024

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and the applicant being absent in open court;

Order by Deputy High Court Judge Michael WONG:

1.  On this court’s own motion, the name of the putative interested party be amended to “Director of Immigration”.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed 29 August 2024, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 30 July 2024 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL001461_2024_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 19 February 2024 and confirmed the same, which rejected his non-refoulement claim.

Amendment

3.In Form 86, the applicant named the Board as both the putative respondent and the putative interested party. In fact, the Board should only be the putative respondent and the Director should be the putative interested party.

4.Thus, on this court’s own motion, the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

5.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

6.In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, he would be harmed or killed by the Muslim extremists as he was a Hindu.

Oral hearing

7.The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 18 June 2026.

8.As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

9.Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Grounds for judicial review

10.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

11.The applicant did not identify any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 29 August 2024.

Discussion

12.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

13.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any ground being advanced by the applicant for the intended judicial review.

14.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 27 June 2024. The applicant was present and was thus given the opportunity to present his case to the Board in person.

15.As can be seen from the Board’s Decision, the Board had given a detailed analysis of the applicant’s claims and its reasoning in rejecting the applicant’s claim for non-refoulement protection.

16.The Board had laid out its assessment of the applicant’s claims in paragraphs 17 to 37 of the Board’s Decision, and it is not necessary to repeat the same here.

17.In gist, the Board found the applicant’s account not credible and his account was rejected as untruthful. The Board found the applicant’s evidence about the Temple Incident vague and unsubstantiated, and did not accept the same. Moreover, even assuming that his account about the Temple Incident was substantiated, the applicant was not individually targeted in the incident. There was no country of origin information (“COI”) indicating that Muslim extremists specifically attacked young male Hindus in Bangladesh.

18.Similarly, the Board did not accept the applicant’s account regarding the Market Incident, which was again vague and unsubstantiated, and unsupported by any objective evidence. Even assuming the Market Incident did happen, the Board found that it was just a general attack by some anti-social thugs against the local people indiscriminately during which all shops, including those belonging to Muslims, were vandalized. The applicant was not targeted or attacked.

19.Moreover, the Board found it implausible for the applicant not to include the Fire Incident in his Non-refoulement Claim Form, which happened only 2 months prior to his departure from Bangladesh, and directly triggered his decision to leave the country.

20.The Board also found that the gravity of ill-treatment that the applicant allegedly suffered was low. The Board did not accept that the applicant’s personal profile as a young male Hindu would put him especially at high risk. It was the applicant’s own evidence that his family were living uneventfully in Dhaka. The Board found that such fact was indicative of an objectively low future risk of harm upon his return to Bangladesh. In any event, there was no evidence that the perpetuators of the alleged incidents were acting in official capacity. There was also no evidence of state acquiescence in the alleged ill-treatment on the applicant.

21.The Board found COI showing that despite setbacks, the local government had taken steps to combat corruption and to improve efficiency. The Board considered that reasonably sufficient state protection was available to the applicant in his country.

22.Although the Board noted that in view of its findings, it was not necessary to explore the viability of internal relocation for the applicant. Nevertheless, the Board still did so and had given full justifications in paragraphs 96 to 98 of the Board’s Decision for its conclusion that it was reasonable and not unduly harsh for the applicant to reside and work anywhere within Bangladesh, especially Dhaka, Chittagong and Khulna.

23.Thus, the Board concluded that the applicant had not substantiated a case for non-refoulement protection on any of the available grounds under the USM.

24.The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision. The applicant’s alleged danger had been fully considered but rejected by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

25.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

26.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

27.For reasons aforesaid, the Leave Application is dismissed.

Dated the 24^th day of June 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