ISLAM SOFIQUL v. TORTURE CLAIMS APPEAL BOARD

HCAL 158/2025

[2026] HKCFI 3758

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 158 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 14 November 2023 and was arrested by police on the same day.  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 his granduncle over their land dispute in his home village.  He was subsequently released on recognizance pending the determination of his claim.  

2.  The Applicant was born and raised in Shaebabad, Brahmanpara, Comilla, Bangladesh.  After leaving school he worked as a farmer in his home district where he later in 2015 inherited a farmland from his grandfather but which was coveted by his granduncle. 

3.  After his grandfather passed away in 2017, his granduncle started to raise issues over the Applicant’s right in the farmland and kept demanding that the farmland be transferred to him, but his demand was always resisted by the Applicant which then led to frequent conflicts between them over the years. 

4.  One day in January 2023 the Applicant was confronted by men sent by his granduncle again with the demand for the transfer of the land to him, and when the Applicant again refused, those men then beat him severely with hockey sticks and an iron rod that he lost consciousness and collapsed onto the ground, and was subsequently brought to the local hospital for medical treatments.  

5.  Shortly thereafter those men again came to demand for the transfer of the land to his granduncle, and threatened to kill the Applicant if he still refused to do so, but the Applicant managed to make his escape and fled from his home district to Chittagong to take shelter in a relative’s place. 

6.  However, later when he heard that his granduncle was making enquiry from the relative in Chittagong for his whereabouts, the Applicant then fled from Chittagong to Dhaka, but as he still feared eventually being located by his granduncle, he therefore departed Bangladesh in November 2023 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 6 April 2024 and attended screening interview before the Immigration Department with legal representation.  

7.  By a Notice of Decision dated 17 June 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”). 

8.  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 his granduncle and followers 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 his granduncle to seriously harm or kill him now that he had taken over the farmland since the Applicant left the country, that in any event it was a private land dispute between him and his granduncle only without 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 Bogra or Khulna where it would be difficult if not impossible for his granduncle to locate him. 

9.  On 28 June 2024 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 14 October 2024 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 31 December 2024 his appeal was dismissed by the Board which also confirmed the Director’s decision. 

10.  In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his granduncle over their land dispute that caused him to leave his country to come to Hong Kong to seek protection, that even if his account of events prior to his departure of Bangladesh were true that there was no reliable evidence of any real intention of his granduncle to seriously harm or kill him particularly now that he had taken over the land since the Applicant had left the country, and that in any event it was a private land dispute between just the 2 of them only without 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 his granduncle that his claim for non-refoulement protection failed on all applicable grounds. 

11.  On 13 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 in which he just repeated his claim as before but without putting forth any proper ground for his intended challengee.  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. 

12.  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.  

13.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim even 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. 

14.  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. 

15.  Moreover, the Applicant has recently in writing requested to withdraw his application as his issues in his home country have been resolved that he now wants to return to Bangladesh as soon as possible. 

16.  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, and in view of his latest confirmation of no more issue for him to return to his home country, I accordingly dismiss his 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