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HCAL 3515/2019
[2025] HKCFI 5189
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3515 OF 2019
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BETWEEN
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Dawan Munsor |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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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 (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 27 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 19 November 2019 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003515_2019_files/the_Board's_Decision.pdf
2. The Board found that the applicant had not substantiated a case for non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board dismissed the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 25 April 2019 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.
The applicant’s case
3. It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
4. In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, he, as a member of the Bangladesh National Party (“BNP”), feared being harmed or killed by Dalu and Salim of the Awami League (“AL”), who both were from his neighbourhood.
Oral hearing
5. The applicant requested for an oral hearing of the Leave Application and his case was heard on 15 August 2025.
6. However, when this court asked the applicant for the grounds for his intended judicial review, he merely replied that his problems had not been resolved back in his country.
Grounds for judicial review
7. The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
8. However, the applicant did not assert any grounds for his intended judicial review in Form 86, nor in his supporting affirmation dated 27 November 2019. He merely stated in the affirmation that the Leave Application was to apply for judicial review against the decision of the Board as well as the Director.
9. As mentioned, the applicant did not assert any valid ground for judicial review at the oral hearing before this court either.
Discussion
10. First of all, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). Thus, the Director’s Decision cannot be the subject matter of the Leave Application.
11. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).
12. Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.
13. In assessing the appeal by the applicant, the Board arranged an oral hearing on 5 November 2019 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person.
14. Having considered all the evidence, the Board found the acts or conduct of Dalu, Salim and other members of AL were purely for the purpose of venting their displeasure at the applicant. They had specific instructions not to kill him. The pain or suffering inflicted had not attained the degree of severity to fall within the definition of torture. There was also no evidence that either Dalu, Salim, or any of the attackers were public officials or in any way acting in any official capacities.
15. The Board further found no evidence that the state had acquiesced in Dalu and Salim’s treatment of the applicant, or failed to provide reasonable protection. The inaction of some police officers at the local police station which refused to register his mother’s complaint could not be imputed to be the general attitude towards the applicant’s complaint by the authorities as a whole. The Board concluded that state protection would be available to the applicant should he actively seek it.
16. Significantly, the Board noted that the applicant left his country since the beginning of 2016. He was no longer involved in any of BNP’s activities. With the effluxion of time, the applicant’s position would have unavoidably evolved into that of a supporter, even if his evidence was assessed at its highest. The applicant was not in a leadership role. He was unlikely to be a person of interest to AL members and Shukmar Ranjan Ghosh, the Member of Parliament who the applicant suspected to be behind his attack. The level of risk upon his return to Bangladesh was assessed to be low.
17. Moreover, the Board found no evidence that those who were harassing the applicant were active outside the immediate locality of the applicant’s home area. The law in Bangladesh provided for freedom of movement. The Board considered that it would not be unduly harsh or unreasonable for the applicant, being an able-bodied adult with 23 years of work experience as a farmer and a furniture welder, to relocate to other major urban areas of Bangladesh where it would be difficult for his enemies to locate him.
18. Based on the above findings, the Board was satisfied that the applicant had not substantiated a case for non-refoulement protection on any of the applicable grounds under the USM.
19. The assessment of evidence and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
20. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.
21. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
22. For reasons aforesaid, the Leave Application is dismissed.
Dated the 31st day of October 2025
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( Irene LEE )
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/Handed to the applicant/the applicant’s solicitors on:
31 October 2025
Applicant’s ref. no:
Nil |
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Sent/Handed 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: 31 October 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 15867/19/5/7/B2021
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 154/19
(formerly as RBCZ 10068/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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