HASAN ANAMUL HOQUE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1365/2021

[2026] HKCFI 1027

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1365 of 2021

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;

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 29 September 2021 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the following Decisions:

a.  The Decision of the Director of Immigration dated 16 January 2019 (“the Imm Decision”); and

b.  The Decision of the Torture Claims Appeal Board / Non refoulement Claims Petition Office (the “Board”) dated 8 September 2021 (the “Board’s Decision”). In the Board’s Decision, the Board rejected the Applicant’s appeal against the Imm Decision.

2.  The Imm Decision is not susceptible to judicial review as it has been superseded by the Board’s Decision once an appeal against it to the Board has been pursued by the Applicant: see Re Moshin Ali [2018] HKCA 549 at para. 45. Thus, I treat the Leave Application to cover the Board’s Decision only.

3.  The Leave Application is supported by the Applicant’s Affirmation dated 29 September 2021 (the “Affirmation”), which exhibited the Board’s Decision, the 2019 Imm Decision and the bundle index of the bundle used in the hearing before the Board.

4.  The Applicant requested an oral hearing, which took place on 21 January 2026 (the “Hearing”).

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 them here. The hyperlink to the Board’s Decision is included below[1] for reference.

Discussion

6.  In the Form, the Applicant raised various grounds in support of the Leave Application, some concern the Director in reaching the Imm Decision while the others concern the Board in reaching the Board’s Decision. I will summarise those relating to the Board’s Decision below, as they are the grounds relevant to the Leave Application:

a.  The Board failed to make sufficient inquiry before finalising the Board’s Decision. The Board should take into account the fact that the Applicant is a torture claimant who has no or limited options to bring his evidence before the Board;

b.  The Board’s Decision is not reasonable or fair. The Board sent a decision to the Applicant with a wrong date and had to correct it by way of a corrigendum;

c.  The right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killing which the Applicant may face if he is deported to Bangladesh;

d.  The Board failed to give the Applicant sufficient time and chance to arrange relevant evidence for his non-refoulment claim and his appeal;

e.  The state would be rendered liable to the Applicant as the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

f.  The Applicant was tortured at the behest of and the full collusion of the police and the state law enforcement agencies;

g.  The corruption and incompetency of the administration in Bangladesh is still very serious. Various human rights organisations have compiled reports to support this;

h.  The Applicant has no choice but to run away from Bangladesh, otherwise he would be harmed or killed;

i.  The Board failed to carry out sufficient research and inquiry into the country-of-origin information (“COI”) and failed to have regard to the relevant and up to date COI. The Board further failed to consider the COVID-19 condition. The Board also failed to consider the political activities and failed to consider the supporting documents;

7.  At the Hearing, the Applicant said that he has nothing to add orally.

8.  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, 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.

9.  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.

10.  I have reviewed the Board’s Decision in detail. The Board has fully considered the Applicant’s grounds for challenging the Director’s decision in refusing his claim for non-refoulment protection. I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision.

11.  With respect to the Applicant’s complaint in paragraphs 6 (a), 6 (d) and 6 (i) above that the Board has not conducted sufficient research and inquiry into the evidence, and has not allowed the Applicant sufficient opportunity to arrange for evidence to be presented, the Applicant was legally represented at the hearings before the Board. The first hearing before the Board was held on 11 November 2020 and adjourned to 9 April 2021 for the Applicant and the Director to deal with an issue concerning trial in absentia by courts in Bangladesh. As noted by the Board in paragraphs 36-39 of the Board’s Decision, it has considered all the evidence before it. I am not satisfied that the Applicant was not given sufficient opportunity to present his case or evidence to the Board.

12.  With respect to paragraph 6 (b), contrary to what the Applicant stated, he did not attach any “corrigendum” to the Form or the Affirmation. In any event, any mistake in the date of the Board’s Decision which has been corrected by a corrigendum would not affect the correctness of the Board’s Decision.

13.  With respect to paragraph 6 (c), the Board has considered the Applicant’s claim based on right to life in its Decision, but found that the Applicant’s claim under this head fails on the facts upon analysing the evidence in detail: see the Board’s Decision paras. 10, 212.

14.  With respect to paragraphs 6 (e) to 6 (h), the Applicant’s assertion that he would be tortured and killed by the Bangladesh government and state agencies have already been considered by the Board before it reached the Board’s Decision. After considering all the evidence, the Board concluded that the Applicant’s claim for non-refoulment protection is not supported by the evidence, unreliable and flawed: see the Board’s Decision paras. 119-209.

15.  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 documents and the grounds raised by the Applicant in reaching the present decision.

Conclusion

16.  For the reasons stated above, I make an order that the Leave Application be dismissed.

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