HASAN MOHAMMAD KAMRUL v. TORTURE CLAIMS APPEAL BOARD

HCAL 831/2021

[2026] HKCFI 1579

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 831 OF 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 46-year-old national of Bangladesh who entered Hong Kong illegally on 21 August 2013 and was arrested by police on 25 August 2013. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Bangladesh he would be harmed or killed by local supporters of various rival political parties and/or by the police due to certain false charges being made against him by his rivals. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Gojaria, District Bogra, Bangladesh. After leaving school he worked as a casual worker in his home village to make his living, and supported the political party Awami League (“AL”) regularly attended their local meetings and activities without holding any official post in the party, during which he and his fellow AL supporters frequently encountered violent conflicts from the local supporters of rival party Bangladesh Nationalist Party (“BNP”) which made up the majority of the local villagers.

3.  In 1999 after some local BNP supporters had filed some false charge against him and his fellow AL supporters, the Applicant fled from his home village to hide in places of his relatives in various towns before moving on to Dhaka where he found a job working as a sales representative for some amusement park, and ceased all support for AL to avoid any further threats from the BNP people.

4.  In 2000, he became interested in the political party Jamaat-ul-Mujahideen Bangladesh (“JMB”) and started to attend their meetings and activities, but after AL won the general election in 2009 and became the ruling party, their supporters started to harass and intimidate the JMB supporters, and in 2012 certain false charges were made to the police against the JMB people including the Applicant that he again went into hiding, and on 25 April 2013 he departed Bangladesh for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 17 December 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 9 May 2016 and a Notice of Further Decision dated 26 June 2017, the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

6.  In his decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and found material inconsistencies and discrepancies in his claims of political involvements in AL and JMB that it is doubtful of his claims of fear of harm from supporters of various rival political parties or the police over any false charges that his claims were not considered as credible or that he would face any real risk of harm from anyone upon his return to Bangladesh, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities where it would be difficult if not impossible for anyone to locate him.

7.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and for which he attended an oral hearing on 19 April 2021 before the Board during which he gave evidence and answered questions raised of his claim by the second Adjudicator for the Board after the first Adjudicator was unable to complete the screening process. On 30 April 2021, his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1], the Board found material and multiple inconsistencies and discrepancies in the Applicant’s evidence given at his appeal hearing which were wholly inconsistent and different from his earlier evidence and information given to the Director and contained in the materials and information submitted for his claim that it did not consider the Applicant to be a credible witness and rejected his claim of ever been a supporter of or having any involvement in any political parties such as AL or BNP or JMB that it rejected the credibility of his claim of fear of harm from any political parties or of any adverse interest of the police in him due to any false charges or cases being brought against him prior to his departure of Bangladesh that it concluded that he had fabricated all of his claims so as to create a basis upon which to apply for non-refoulement protection that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 7 June 2021, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date to which he just attached a copy of the further decision of the Director instead of the Board’s decision and without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

10.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

12.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

14.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly 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