MD BILLAL HOWLADAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 77/2025

[2026] HKCFI 3757

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 77 OF 2025

  Application for Leave to Apply for Judicial Review

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

Following:

The application for leave to apply for Judicial Review be dismissed. 

Observations for the Applicant:

1.  The Applicant is a 34-year-old national of Bangladesh who entered Hong Kong illegally on 11 May 2024 and was arrested by police on 18 May 2024.  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 certain local supporters of the political party Awami League (“AL”) as he supported their rival Jamaat-e-Islami (“JeI”).  He was subsequently released on recognizance pending the determination of his claim.  

2.  The Applicant was born and raised in District Khulna, Bangladesh.  After leaving school he worked as a shop assistant and later ran a mobile phone shop, got married and raised a family with a son in his home district, and supported JeI regularly attended their local meetings and activities without holding any official post in the party. 

3.  One day in May 2013 he together with his fellow JeI supporters attended a protest in Dhaka against the government ran by AL, and was subsequently arrested by police who were there to arrest and disperse the protesters. 

4.  Upon his subsequent release by the police, some of the local AL supporters started to harass and threaten him, and on one occasion they took him by force to a remote area where they beat him severely that he was subsequently taken to the hospital for medical treatments.  

5.  To avoid further threats from those local AL supporters, the Applicant left the country for Oman where he stayed until 2014 after those AL supporters had stopped looking for him that he returned to his home district in Bangladesh, and subsequently resumed his support for JeI. 

6.  However, after participating with his fellow JeI supporters in a protest one day in June 2022, those local AL supporters again came to the Applicant’s home looking for him, but as he happened to be not in the house, those AL supporters then warned his father that they would kill him if he continued to participate in protests against the government.  

7.  As a result the Applicant on his father’s advice fled from his home for Dhaka to hide in a relative’s place, and on 1 October 2023 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 5 August 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

8.  By a Notice of Decision dated 22 October 2024 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”). 

9.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local AL supporters upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him or any political reason to specifically target the Applicant given that he was just an ordinary JeI supporter without any official post in the party, 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”) shows that reasonable internal relocation alternatives are available in Bangladesh with a large population of 167 million people spread across a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young adult with working experience to move to other areas of the country away from his home district in large cities such as Chittagong or Bogra where it would be difficult if not impossible for anyone to locate him.

10.  On 1 November 2024 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend the scheduled oral hearing on 9 December 2024 before the Board without any explanation or response to the subsequent enquiry from the Board for his absence or any request for another oral hearing from the Applicant, whereupon the Board proceeded to deal with his appeal and claim in his absence and on papers based on all the materials and information earlier submitted by him to the Director and available in the hearing bundle before the Board.  On 16 December 2024 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision[1] the Board found no reliable evidence of any real intention of those local AL supporters to seriously harm or kill the Applicant or to have any political reason to specifically target him given that he was just an ordinary JeI supporter without holding any official post in the party, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Bangladesh as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds. 

12.  On 7 January 2025 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 decision but without putting forth any proper ground for his intended challenge.  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.  

13.  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. 

14.  In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision 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. 

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

16.  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. 

17.  It is also of note that the Applicant has recently in writing requested to withdraw his application as he now wants to return to Bangladesh but without any explanation as to what may have happened to his claimed risk in his home country. 

18.  As I am for the given reasons 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