Md Nazir Ahmed Sarkar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1361/2022

[2026] HKCFI 5929

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1361 of 2022

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following;

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

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

The procedural history

1.By Order of the Court of Appeal dated 24 June 2021 [2021] HKCA 918, the applicant’s appeal was remitted to the Non-refoulement Claims Petition Office (“NRCPO”) for re-assessment.  I shall adopt the nomenclature in the judgment of the Court of Appeal.

2.By Decision dated 23 September 2022 (“the NRCPO’s Decision”), the NRCPO dismissed the applicant’s appeal against the Director’s Decisions respectively dated 30 November 2015 on the BOR 3 risk and Persecution risk (“the Director’s 1^st Decision”), and 9 March 2017 on BOR 2 risk (“the Director’s 2^nd Decision”), collectively called (“the Director’s Decisions”) as mentioned below.

3.The applicant applies for leave to apply for judicial review of the NRCPO’s Decision.

4.The applicant was absent at the hearing on 12 October 2026.  I shall deal with his application on the papers.

The applicant  

5.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 (i) the Purbo Bangla Communist Party (“PBCP”) because he refused to join them, (ii) the Sunni Muslims due to religious reasons and (iii) the current Bangladeshi government due to political opinion expressed in the public media.

6.Details of his claim are set out in the NRCPO’s Decision.  See hyperlink.

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL001361_2022_files/the_Board's_Decision.pdf

The Director’s Decisions

7.The applicant lodged a torture claim on 7 August 2012 with the Director of Immigration (“the Director”).  The Director dismissed his claim in a decision dated 24 January 2014.  The applicant appealed to the CAT Appeal Board, which dismissed the appeal on 10 June 2014.  The applicant did not apply for leave for judicial review of the CAT Board’s decision.  Insofar as the Torture risk is concerned, the CAT’s Decision is final.

8.On 6 March 2014, the applicant made a non-refoulement claim on 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 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”) to the Director.

9.The applicant also lodged his claim on 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”).

10.By the Director’s Decisions, the Director rejected the applicant’s claim on BOR 3 risk, Persecution risk and BOR 2 risk.

The NRCPO’s Decision

11.The applicant appealed the Director’s Decisions to the NRCPO, which dismissed his appeal.  The applicant applied to the Court of First Instance for leave to apply for judicial review of the NRCPO’s Decision.

12.The Court of First Instance granted leave to the applicant to apply for judicial review of the NRCPO’s Decision.  It dismissed the applicant’s judicial review of the NRCPO’s Decision.  On appeal, the Court of Appeal set aside the Judge’s Order and remitted the applicant’s appeal to NRCPO for re-assessment.

13.On 17 May 2022, the NRCPO conducted an oral hearing re-assessment of the applicant’s appeal.  He was legally represented by a duty lawyer.  The Director was represented by government counsel.  He had given oral evidence and answered questions.

14.Having considered the evidence and counsel’s legal submissions, the NRCPO found the facts below.

(1)  It accepted the facts as alleged in relation to gun shooting, sighting incidents, unknown people shooting the name of the applicant, the applicant’s wife was raped, and his brother and mother were killed, but did not accept those incidents were perpetrated by PBCP members or someone instructed by PBCP [103]‑[109].

(2)  Reasonable state protection will be available to the applicant if he returns to Bangladesh [146]-[148].

(3)  The applicant failed to establish his claim on Persecution risk [149].

(4)  There was no evidence that sentence of death will be imposed on the applicant if he returns to Bangladesh, and he fails to establish BOR 2 risk [151]-[156].

(5)  The applicant faces no genuine and substantial risk of being subjected to ill‑treatment if he returns to Bangladesh and he fails to establish BOR 3 risk [158]-[163].

15.For the reasons above, the NRCPO dismissed his appeal and affirmed the Director’s Decisions.

Application for leave to apply for judicial review of the NRCPO’s Decision

16.The applicant filed Form 86 dated 29 November 2022 for leave to apply for judicial review of the NRCPO’s Decision.

17.The applicant did not raise any specific reason to challenge the NRCPO’s Decision in his affirmation in support of his application.  He has attached a copy of the NRCPO’s Decision to his affirmation.

Discussion

18.The role of this Court is supervisory, meaning that it ensures that the NRCPO complied with the public law requirements in coming to the NRCPO’s Decision on the applicant’s appeal.  The Court will not usurp the fact-finding power vested in the Director and the NRCPO.  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).

19.The Court will bear in mind that the NRCPO’s Decision should be examined with rigorous examination and anxious scrutiny.

20.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.”

21.The applicant has raised no reason to challenge the NRCPO’s Decision, which appears to bear no error in law or procedural irregularity, or is otherwise irrational.  There is no reason for the Court to interfere with the NRCPO’s Decision.

22.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the NRCPO’s Decision.

Disposition

23.I refuse to grant leave to the applicant to apply for judicial review of the NRCPO’s Decision.  Accordingly, I dismiss his application.

Dated the 28^th day of October 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