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HCAL 948/2024
[2026] HKCFI 4691
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 948 of 2024
BETWEEN
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Goni Md Osman |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
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 23 May 2024 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the
appeal against the Director’s Decision as described below.
2. The applicant did not ask for a hearing.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the
Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the
Director of Immigration is the interested party.
The
applicant
4. 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 Alauddin and members of the Awami League (“AL”)
because of a land dispute.
5. 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/HCAL000948_2024_files/the_Board's_Decision.pdf
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 Notice of Decision dated 4 January 2024 (“the
Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was
unsubstantiated.
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board.
On 16 May 2024, the Board conducted an oral hearing for his appeal. He had given oral evidence and
answered the Board’s questions.
9. Having considered the evidence, the Board found that on the
totality of the evidence, it did not accept that the applicant was threatened by Alauddin or other AL supporters
in his home village in Bangladesh [85] because such evidence was hearsay and given the fact that he was not
ill-treated, it attached no weight to the hearsay evidence [86]; that he would have state protection if he
returns to Bangladesh [45]; and that internal relocation is also viable [47].
10. For the reasons above, the Board dismissed his appeal and
affirmed the Director’s Decision.
Application for leave to apply for judicial review of the Board’s Decision
11. The applicant has filed Form 86 dated 18 June 2024 for
leave to apply for judicial review of the Board’s Decision.
12. The applicant did not raise any ground to challenge the
Board’s Decision. He has attached a copy of the Board’s Decision to his affirmation.
DISCUSSION
13. 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).
14. The Court will bear in mind that the Board’s Decision
should be examined with rigorous examination and anxious scrutiny.
15. 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.”
16. The applicant fails to show that he has any realistic
prospect of success in his proposed judicial review of the Board’s Decision.
DISPOSITION
17. 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 19th day of August 2026
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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 19/8/2026
Goni Md Osman
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
19/8/2026
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 22791
Director of Immigration
Putative Interested Party’s ref. no.:
INCL-0001122-23(0) (CZ)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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