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HCAL 3367/2019
[2025] HKCFI 3981
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3367 OF 2019
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BETWEEN
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Alam Mohammed Bulbul |
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. On this court’s own motion, “Torture Claims Appeal Board” be added as the putative respondent, “Director of Immigration” be added as the putative interested party, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 1 November 2019”.
2. 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 1 November 2019 and filed on 12 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a “DETERMINATION OF APPEAL/PETITION WITH A HEARING DATE OF DECISION 20 JULY 2018”.
2. The Torture Claims Appeal Board (“the Board”) made one decision on 1 November 2019 (“the Board’s Decision”) regarding the applicant’s petition against the decision of the Director of Immigration (“the Director”) dated 20 July 2018 (“the Director’s Decision”). The date of the Director’s Decision was the date stated by the applicant in Form 86.
3. However, the applicant confirmed at the oral hearing before this court on 17 June 2025 that the Leave Application was made in respect of the Board’s Decision instead of the Director’s Decision. The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003367_2019_files/the_Board's_Decision.pdf
4. The Board found that the applicant was not qualified for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”) based on BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3] (except Torture Risk[4]). The Board thus dismissed the applicant’s petition and confirmed the Director’s Decision.
5. The applicant had previously raised a torture claim, which was rejected by the Director on 8 March 2013. The Director’s decision on his torture claim was confirmed by the Board on 13 June 2014. Thus, the applicant’s Torture Risk had already been assessed and finally determined, and it was not necessary for the Board to deal with it again in the Board’s Decision.
Amendments
6. The applicant did not name any putative respondent and putative interested party in Form 86, when the Board and the Director should be so named respectively.
7. Thus, on this court’s own motion, “Torture Claims Appeal Board” is added as the putative respondent and “Director of Immigration” is added as the putative interested party.
8. As aforesaid, the decision in respect of which relief is sought in this Leave Application should be “Torture Claims Appeal Board’s decision dated 1 November 2019”. Thus, on this court’s own motion, it is so amended.
The applicant’s case
9. 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.
10. In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, he would be harmed or killed by Shafique and the members of the Bangladesh Chhatra League (“BCL”), the student wing of the Awami League. The applicant was an ordinary member of the Jatiyatabadi Chhatra Dal (“JCD”), the student wing of the Bangladesh Nationalist Party (“BNP”). He was nominated as the Assistant General Secretary candidate for the election of the college student union in July 2011. BCL in the college asked JCD to withdraw nominations, but JCD refused. In May 2011, members of BCL attacked members of JCD and the applicant was taken to the home of Shafique, who was the vice-president candidate for BCL. The applicant was kept there and ill-treated for 12 days. After he was released and had medical treatment, his parents told him to leave Bangladesh.
Oral hearing
11. The applicant requested for an oral hearing and his case was heard on 17 June 2025.
12. At the hearing, apart from confirming that the Leave Application was made in respect of the Board’s Decision instead of the Director’s Decision, the applicant merely said that he was married to a Hong Kong resident and was applying for residency here. When this court asked the applicant for his grounds of the Leave Application, he simply said that he did not know.
Grounds for judicial review
13. 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).
14. The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 12 November 2019. As aforesaid, the applicant also failed to advance any ground at the oral hearing before this court.
Discussion
15. 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).
16. Thus, despite that the applicant has failed to establish any valid ground as aforesaid, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
17. In assessing the petition by the applicant, the Board held an oral hearing on 20 December 2018. The applicant was present and was given the chance to present his case to the Board in person.
18. After detailed questioning of the applicant, the Board found a large number of the applicant’s claims not credible. The Board concluded that there were serious credibility problems such that it was not willing to attach any credence regarding the applicant’s narrative.
19. The Board also found that the applicant had not suffered any harm or threats of harm at all, and there was no real risk of any harm or threats of harm. It was the applicant’s own evidence that he was not even an ordinary member of BNP. He was “a small citizen” and “a person of no significant status”. He had no political profile that was of interest to any political parties.
20. The Board considered from extensive country of origin information (“COI”) that despite the applicant’s claim that the Bangladeshi police would only help those in the ruling party, the Bangladesh government had taken steps to reform their police and combat corruption. The Board concluded that reasonable state protection would be available to the applicant should he need it.
21. The Board also considered internal relocation viable for the applicant. The Board found that the applicant could reasonable live without fear of harm or undue hardship if he were to relocate to, for example, the City of Dhaka, the City of Chittagong, the City of Khulna and the City of Rajshahi. Freedom of movement was allowed in Bangladesh. The applicant, as an able-bodied adult with education up to the first year of college, could reasonably live without undue hardship upon relocation to avoid any perceived risks.
22. Thus, the Board concluded that the applicant failed to establish any real risk of harm, arbitrary deprivation of life or persecution and rejected his claim for non-refoulement protection.
23. The finding of facts was solely within the ambit of the Board. The Board was entitled to come to its conclusion. If the applicant intends to challenge the finding of facts of the Board, it is not permissible in an application for judicial review. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
24. 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.
25. 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
26. For reasons aforesaid, the Leave Application is dismissed.
Dated the 2nd day of September 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: 2 September 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:
2 September 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 12769/18/8/39/B1440
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 2182/18
(formerly RBCZ 2002329/14)
Department of Justice,
Senior Assistant Law Officers
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
[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 persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
[4] Risk of torture under part VIIC of the Immigration Ordinance, Cap. 115.
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