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HCAL 2132/2020
[2025] HKCFI 5611
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2132 OF 2020
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BETWEEN
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Hoque Mozammal |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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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 (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. 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 on 27 October 2020, 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 16 October 2020 (“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/2020/HCAL002132_2020_files/the_Board's_Decision.pdf
2. The Board decided that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the decision of the Director of Immigration dated 17 February 2020, which rejected the applicant’s non-refoulement claim.
The applicant’s case
3. 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.
4. In sum, the applicant raised his non-refoulement claim because if refouled to Bangladesh, he would be at risk of being harmed or killed by people from Awami League (“AL”) as he was affiliated with Bangladesh Nationalist Party (“BNP”).
Oral hearing
5. The applicant requested for an oral hearing of the Leave Application and his case was heard on 18 September 2025.
6. At the hearing, the applicant said that there was nothing wrong with the Board’s Decision, but he made the Leave Application because the current situation in Bangladesh was not favorable and he would go back when the situation improved after the new government came in. He added that he still had problem and his enemies had blocked the way for hundreds of families so that they could not move elsewhere.
Grounds for judicial review
7. 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).
8. However, the applicant did not advance any grounds for judicial view in Form 86, nor in his supporting affirmation dated 27 October 2020. He merely stated in the affirmation that he did not agree with the Board’s Decision.
9. As mentioned, the applicant in fact admitted that there was nothing wrong with the Board’s Decision.
Discussion
10. First of all, the applicant’s assertions at the oral hearing that the current situation in Bangladesh was not favorable and his enemies had blocked the way for hundreds of families so that they could not move elsewhere were not brought up for the Board’s consideration. As held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage. Thus, these assertions cannot amount to a valid ground to challenge the Board’s Decision.
11. 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).
12. Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
13. In assessing the appeal by the applicant, the Board held an oral hearing on 23 June 2020. The applicant was present and was given the chance to present his case to the Board in person.
14. As can be seen from the Board’s Decision, the Board considered the applicant’s case carefully but found that the applicant only suffered minor injuries at the first and second incident. The applicant could not identify the attackers in the first incident and hence it was unsure that AL people did hit him.
15. In any event, there was a time lapse of more than two years between the happening of the first and second incident. It was apparent that AL people had no intention to kill the applicant, as if they did, they had plenty of opportunities to do so as AL people outnumbered the applicant and his relatives and they carried weapons.
16. The applicant had never met any AL people since around January 2019 after he moved around various places in Bangladesh. The applicant could move freely around the country since January 2019 and return to his village from time to time and leave Bangladesh amid the false case of arson as he had alleged. Nothing eventful had happened to his family in Bangladesh. The harm by AL people, if any, was not as real and imminent as the applicant had asserted. Even assuming that the threat from AL people was real, the threat was localized only.
17. It was the applicant’s evidence that he had only reported the two incidents to the local police and did not take it to the police at higher ranks or other government authorities when the local police did not register the case.
18. Further, he was not a prominent figure with BNP. It was therefore hard to believe that AL people would target on him and mobilize and utilize power and resources to pursue him all over the country. There was also no indication that the ill-treatment by AL people on him in his local area was connected with the whole AL.
19. The Board did not accept that the applicant was ill-treated by AL people or targeted by the police because of his political affiliation. Further, the harm, actual or perceived, from AL people was not imminent and the ill-treatment, if any, had not attained a minimum level of severity. The future risk as suggested by the applicant was his own speculation only.
20. From the information provided, there was no indication that the AL people who attacked the applicant were state actors, public officials or acting in any official capacity. No political parties, organization or the government in Bangladesh was involved in the dispute between those AL people and the applicant.
21. Moreover, although the Board found some country of origin information (“COI”) which corroborated the applicant’s assertions, there were also objective COI which suggested that the Bangladeshi government had taken action to protect the rights of its citizens, exercised its due diligence and had been tackling the corruption problem. The Board considered that reasonable state protection was available to the applicant upon his return to Bangladesh.
22. The Board found that the applicant could not, on the facts as found, bring himself within any of the grounds enumerated in the definition of “refugee” in Article 1A(2) of the RC[1]. The Board also found that the applicant would not be at risk of ill-treatment and arbitrary deprivation of life contrary to BOR 3 Risk[2] and BOR 2 Risk[3], or at risk of Torture[4].
23. Despite its findings that the applicant did not face a real risk of any of the proscribed harm, the Board did assess the viability of internal relocation for the applicant. The Board found that it would not be unduly harsh for the applicant, being an able-bodied young adult with many years of work experience, to live elsewhere in Bangladesh. It would be highly unlikely for those AL people to locate the applicant in such a large country with such a huge population, in case they would.
24. The finding of facts, including the assessment of risk of harm and COI materials, was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
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 19th day of November 2025
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( Irene LEE )
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 his 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/Handed to the applicant/the applicant’s solicitors
on: 19 November 2025
Applicant’s ref. no:
Nil |
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Sent/Handed 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:
19 November 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16778/20/3/6/B2128
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1111/19
(Formerly RBCZ/10838/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] RC is the abbreviation for the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
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