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HCAL 200/2024
[2026] HKCFI 4032
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 200 of 2024
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BETWEEN
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Sheakh Md Nasir |
Applicant |
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And |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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And |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following;
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consideration of documents only; or |
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consideration of documents and Applicant being present in open court; |
Order by Deputy High Court Judge Andrew Li
Leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
THE APPLICATION
1.The applicant applies for leave to apply for judicial review of the Decision dated 28 December 2023 of the Torture Claims Appeal Board (“the Board’s Decision”).
2.The applicant did not request for an oral hearing and hence this application will be dealt with by way of consideration of documents only.
The applicant
3.The applicant is a national of Bangladesh. He was an illegal immigrant for the reason that he had entered into Hong Kong illegally from the Mainland on 15 July 2020. On 5 October 2020, the applicant lodged his non-refoulment claim by way of a written representation. The applicant claims that, if he is refouled, he would be harmed or killed by members of a political party called the Awami League (“AL”). and the police.
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/2024/HCAL000200_2024_files/the_Board's_Decision.pdf
The Director’s Decision
5.The Director considered the applicant’s claim in relation to the following risks:
(1) risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
(2) 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”);
(3) 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
(4) 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 the Notice of Decision dated 29 September 2021 (“the Director’s Decision”), the Director dismissed the applicant’s claim.
The Board’s Decision
7.The applicant appealed the Director’s Decision to the Board. On 28 November 2022, the Board conducted an oral hearing for him. He had given oral evidence and answered the Board’s questions.
8.Having considered the evidence, the Board made the findings below:
(1) Having considered all the evidence before it, including but not limited to his statements made under this non-refoulment claim form (“NCF”); his responses given at the screening interview with the Immigration Department; and his responses given to the Board at the hearing, the Board formed the view that the applicant is not a truthful witness. [91]
(2) There were a lot of inconsistencies in his evidence which rendered the centrepiece of the applicant’s story cannot stand. [92]
(3) The Board identified 5 major problems with the applicant’s evidence. They included (i) the conduct of the applicant in or around 2011-2018 [93]; (ii) his conduct in or around 2018-2019 [94-95]; (iii) examples of the contradictory evidence given by the applicant [96-100]; (iv) problem with the applicant’s supporting documents [101-102]; and (v) the hearsay nature of the evidence regarding the issue of warrants issued by the authority against him in 2011 and 2018 [103].
(4) Therefore, the Board found that the evidence given by the applicant rendered his claim of risk from AL “unrealistic and incredible”. In particular, the Board concluded the applicant’s claim regarding his fear of the AL and the police is “exaggerated, far-fetch and fanciful” [104].
(5) The Board further considered that, even if he can succeed in any of the grounds of appeal, it will not be unreasonable or unduly harsh for him to relocate himself to other parts of Bangladesh [133].
(6) The Board therefore conclude that the applicant’s application for non‑refoulement protection fails on all applicable grounds [134].
9.For the above reasons, the Board dismissed his appeal.
Application for leave to apply for judicial review of the Board’s Decision
10.The applicant has filed the Form 86 dated 22 January 2024 for leave to apply for judicial review of the Board’s Decision.
11.The applicant has not raised any specific ground to challenge the Board’s Decision.
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 Decisions should be examined with rigorous examination and anxious scrutiny. 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.”
14.The applicant has raised no valid ground to challenge the Board’s Decision. There is no evidence that shows the court should interfere with the Board’s Decision.
15.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.
DISPOSITION
16.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 29th day of July 2026
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(Annson CHEUNG)(Ms)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 29/7/2026
Sheakh Md Nasir
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 29/7/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 18952
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1648/21 (formerly RBCZ 10735/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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