AHMMED MD IKBAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3263/2019

[2025] HKCFI 3047

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3263 of 2019

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 present in open court;

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 31 October 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 4 July 2025.

The applicant

3.  The applicant is a national of Bangladesh.  According to records, the applicant came to Hong Kong and overstayed since 8 March 2018.  On 12 March 2018, he surrendered to the Immigration Department.  In due course, the applicant lodged his non-refoulement claim.

4.  The applicant’s claim is based on his fear of being harmed or killed by enemies due to a dispute with a politician of the Awami League (“AL”).

5.  According to the applicant, the applicant joined BNP in around 2008 and began a business of purchasing land at low price and selling it when the price increased.  An AL politician threatened the applicant not to compete with him in the land business. There was an incident where the applicant was attacked and injured and another incident where his shop was vandalised. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 31 December 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  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”);

c.  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

d.  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”).

7.  By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed his claim.  In summary, the Director found that there were no substantial grounds to believe that the claimed future risk of harm was real and foreseeable, taking into account the intensity and frequency of ill-treatment; that past behaviours did not suggest the perceived harms were as imminent and substantial, and the applicant’s enemies were in no way an official matter [15-20]; that state protection was available [21-26]; and that internal relocation alternatives were available and reasonable [27-28].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 13 September 2019, the Board conducted an oral hearing for his appeal.

9.  Having considered the evidence, the Board found that the applicant was not a reliable or credible witness in a number of significant aspects of his claim [72].  In conclusion, the Board held the applicant will not be subjected to any real risk of harm if he returns to Bangladesh. [79]-[82]  It therefore dismissed his appeal and confirmed the Director’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003263_2019_files/the_Board's_Decision.pdf.

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

10.  The applicant has filed Form 86 dated 4 November 2019 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, the applicant did not raise 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 Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board’s Decision was not wrong.

14.  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.”

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.

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