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HCAL 3153/2019
[2025] HKCFI 3480
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3153 of 2019
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Sahim Khan |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration |
Putative Interested Party |
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 K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 21 August 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.
2. The applicant asked for a hearing. He appeared before the Court on 18 June 2025.
The applicant
3. The applicant, aged 47, is a national of Bangladesh. He came to Hong Kong as a visitor in 2006. He overstayed and was arrested by police. He was also charged with making false representation to the Immigration Department, for which he was convicted and imprisoned. He raised a torture claim, which he later withdrew. A deportation order was issued against him. On 12 November 2010, he was arrested by police for breach of the deportation order. He lodged a non-refoulement claim by written significations respectively dated 12 March 2013, 7 April 2014 and 29 August 2018.
4. He claimed that, if refouled, he will be harmed or killed by members of the Awami League (“the AL”) because he was a social secretary of a district under the Bangladesh Nationalist Party (“the BNP”), a rival political party of the AL
5. According to the applicant, he had instigated a fight between members of BNP and those of the AL in 2005. There were members of both parties having been injured. The AL members took revenge and the leader gave a death order against him. Upon his other members’ advice, he came to Hong Kong in 2006. Later, one of his members told him that it was safe for him to return, which explained why he had withdrawn his torture claim in 2006. After he returned to Bangladesh, another member told him that his enemies were still looking for him. He therefore came to Hong Kong in 2013.
6. Details of his claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003153_2019_files/the_Board's_Decision.pdf.
7. The Director considered the applicant’s claim in relation to the following risks:
a. 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”);
b. 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
c. 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”).
8. By way of Notice of Decision dated 9 November 2018 (“the Director’s Decision”), the Director dismissed the applicant’s claim. The Director found that the absence of past ill-treatment from the AL members is indicative of a low future risk of harm upon his return; that the AL members’ behaviour did not amount oppression on him; that state protection will be available to him; and that internal relocation alternatives are viable. [13]-[23]
The Board’s Decision
9. The applicant appealed the Director’s Decision to the Board. On 31 July 2019, the Board conducted an oral hearing for his appeal.
10. Having considered the evidence, the Board found that he agreed that it was remote in the extreme that he would now be harmed by members of the AL if he returned [118]; that state protection will be available to him if he returns [186] and that internal relocation is not unreasonable for him [189].
11. For those reasons above, the Board agreed with the Director’s Decision and dismissed his appeal.
Application for leave to apply for judicial review of the Board’s Decision
12. The applicant has filed Form 86 dated 24 October 2019 for leave to apply for judicial review of the Board’s Decision. He did not raise any ground in support of it.
13. In his affirmation in support of his application, the applicant also did not raise any valid ground to challenge the Board’s Decision.
DISCUSSION
14. 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).
15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant admitted that the Board was fair to him.
16. The applicant has raised no valid ground to challenge the Board’s findings.
17. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.
DISPOSITION
18. 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 27th day of August 2025
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(Allen LEE)
for Registrar, High Court |
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 27/8/2025
Sahim Khan
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 27/8/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 14467/18/11/310/B1699
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3914/18 (formerly RBCZ/3000721/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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