HOSSAIN AIKB v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1/2022

[2026] HKCFI 1026

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1 of 2022

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 oral submissions by the Applicant in open court;

1.  Form 86 be amended by naming the Director of Immigration as the putative interested party.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 3 January 2022 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the Decision of the Torture Claims Appeal Board / Non refoulement Claims Petition Office (the “Board”) dated 18 November 2021 (the “Board’s Decision”).

2.  The Applicant named the Board as the interested party in the Form. I will amend the Form on my own motion to name the Director of Immigration (the “Director”) as the putative interested party instead.

3.  In the Affirmation in support of the Leave Application, the Applicant raised the following grounds in support of the Leave Application:

a.  Procedural impropriety – failure to properly apply paragraph 2 of the UN Committee against Torture General Comment No. 2 whereby satisfaction of a national state’s obligations to conduct sufficient due diligence requires that reforms and means of relief introduced by the state must be effective, as opposed to merely showing signs of positive improvement, citing Re: JKF CACV 103/2014 (unrep., 25/11/2014);

b.  Procedural impropriety – failure to conduct sufficient inquiry into the relevant country of origin conditions;

c.  Procedural impropriety/irrationality - failure to give reasons for the assessment of risk under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance (the “BOR 2 Risk”) or to give sufficient basis to support the conclusion on the BOR 2 Risk and Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance (the “BOR 3 Risk”) assessment;

d.  Error/misdirection in the law – failure to take into account the consideration of psychological strain and threats to the Applicant;

e.  Procedural impropriety – failure to consider the Applicant’s fear that his enemies are still waiting for him if he returns to Bangladesh, and that the Applicant cannot relocate to other places in Bangladesh as the enemies could easily trace him;

f.  No sufficient basis to conclude that the Applicant and his family would not be at risk of being subject to torture and/or cruel, inhuman or degrading treatment or punishment (“CIDTP”) upon refoulment.

4.  The Applicant requested an oral hearing for the Leave Application, which took place on 21 January 2026 (the “Hearing”). At the Hearing, the Applicant said that he has difficulty going back to Bangladesh, his parents were attacked by his enemies a few days ago and they were still in the hospital. The enemies threatened to hurt the Applicant’s family as he was not there.

Background

5.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference.

Discussion

6.  The relevant legal principles are well established. The Court’s role in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, 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, procedural unfairness or irrationality in the decision of the Board: see Nupur Mst v Director of Immigration [2018] HKCA 524 at para. 14. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: see Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

7.  Having considered all the relevant materials before me, I do not consider the Applicant’s intended challenge against the Board’s Decision to be reasonably arguable with any realistic prospect of success.

8.  I have reviewed the Board’s Decision in detail. The Board had fully considered the Applicant’s evidence and his grounds for challenging the Director’s decision in refusing his claim for non-refoulment protection. The Board found on the facts that while there were disputes between two rival parties, the Awami League (“AL”) and the Bangladesh Nationalist Party (“BNP”), the Applicant was not a target of them due to the political difference or that he was a member of the BNP. The Applicant had a dispute with Bhudu, a leader of AL, not because of his political stance, but because of a private matter - the Applicant was dating Bhudu’s daughter and Bhudu did not approve it. As for the Bangladesh police’s pursuit against the Applicant, it was due to the Applicant’s involvement in illegal activities which resulted in convictions and imprisonments ordered by the Bangladesh Court. There was no suggestion of injustice or unfairness in any of the proceedings in the Bangladesh Court. While the Applicant was attacked on a number of occasions, they only resulted in bruises and swelling with no permeant disability: see the Board’s Decision paras. 62-63, 89-99. In addition, the Board considered that there were internal relocation options available to the Applicant: see the Board’s Decision paras. 105‑110. On the above bases, the Board concluded that the Applicant would not face any torture risk, BOR 2 Risk, BOR 3 Risk or persecution risk if he returns to Bangladesh and rejected the Applicant’s appeal. I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision.

9.  With respect to the Applicant’s complaints in paragraphs 3 (c) and (f) above, the Board had analysed the Applicant’s evidence and found on the facts that he will not be subject to BOR 2 Risk, BOR 3 Risk or CIDTP risk if he returns to Bangladesh, see paragraph 8 above, and the Board’s Decision paras. 98-100.

10.  With respect to the Applicant’s complaint at paragraphs 3 (d) and (e) above, the Board had taken into account the Applicant’s fear of returning to Bangladesh, his alleged loss of memory and the options for internal relocation before reaching the Board’s Decision: see Board’s Decision paras. 16-59, 99, 105-110.

11.  As to the Applicant’s complaints at paragraphs 3 (a) and (b) above, as explained above, the Board found on the facts that the Applicant had not been subject to any torture before he left Bangladesh, whether by the police or otherwise. Hence, the Applicant has failed to show that he would face any risk of torture if he goes back to Bangladesh. In such circumstances, I consider that the Board has sufficiently considered the COI materials of Bangladesh in reaching its Decision: see Board’s Decision para. 62-97.

12.  As to the Applicant’s assertion at the Hearing that his parents were recently attacked by his enemies in Bangladesh, this would not assist the Applicant’s Leave Application as it is merely a bare assertion not supported by any evidence.

13.  Leave application of this sort is meant to be a filtering process and this Court is not expected to give elaborated reasons for its decision: see Re Zunariyah [2018] HKCA 14 at para. 23. I have considered all the relevant materials in reaching the present decision.

Conclusion

14.  For the reasons stated above, I will dismiss the Leave 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