CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3306 of 2019
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BETWEEN
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MD Liton |
Applicant |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
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 (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 28 October 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.
2. The applicant asked for a hearing. He appeared before the Court on 3 December 2025.
The applicant
3. The applicant is a national of Bangladesh. He is an illegal immigrant, having entered Hong Kong illegally by sneaking into Hong Kong by boat on 22 April 2007. He was arrested. 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 members of the Awami League (“AL”) because he was a supporter of the Bangladesh Nationalist Party. His enemies are still looking for him.
4. Details of his claim are set out in the Board’s Decision. See hyperlink.
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003306_2019_files/the_Board's_Decision.pdf
The Director’s Decision
5. 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”).
6. By way of Notice of Decision dated 20 July 2018 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.
The Board’s Decision
7. The applicant appealed the Director’s Decision to the Board. On 19 July 2019, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board’s questions.
8. Having considered the evidence, the Board made the findings below.
(1) The Board took no issue on his credibility. [50]
(2) There was no substantial grounds for believing that the applicant will suffer severe ill-treatment or serious harm upon refoulement. [58]
(3) He did not report his case to police in Bangladesh. There was no evidence that police was influenced by the leader of AL. [61]
(4) Internal relocation is viable in places such as City of Dhaka or other parts of Bangladesh. [63]
9. 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
10. The applicant has filed Form 86 dated 6 November 2019 for leave to apply for judicial review of the Board’s Decision.
11. The applicant has raised the grounds below in support of his application.
(1) The Board had unlawfully fettered its discretion, refusing his appeal.
(2) The adjudicator had acted unfair procedurally as it did not invite him to make written submissions and had relied on the source of news not officially recognized or it is simply hearsay. The authorities are outdated or hearsay.
(3) The Board’s decision refusing his appeal is unreasonable, irrational or an error in law.
(4) The Board failed to meet the greater care and duty to him.
DISCUSSION
12. 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).
13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant admitted that the Board was not wrong.
14. 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.”
15. As to the reasons the applicant has raised under paragraph 11, they are bare assertions without any evidence in support. They are not valid to challenge the Board’s Decision.[1] They are insignificant in view of his admission before the Court.
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 23rd day of December 2025
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(Annson CHEUNG)(Ms)
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 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 23/12/2025
MD Liton
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 23/12/2025
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 12705/18/7/455/B1428
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2159/18 (formerly RBCZ 2001644/14) [T8S53]
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:
“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”