HABIBUR RAHMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3257/2019

[2025] HKCFI 4225

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3257 of 2019

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 Applicant being present in open court;

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 2 September 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 23 July 2025 and 25 August 2025.  In the first hearing on 23 July 2025, he asked for his children’s claim to be dealt with together.  The case was adjourned for further enquiry. 

3.  Upon enquiry, it was discovered that his wife and her children’s claim had been dealt with in another action.  His wife and children’s application HCAL 663 of 2019 was dismissed by the Court and upon appeal, by the Court of Appeal on 17 July 2020.  They lodged a subsequent claim with the Director.  The Director refused their application.  They applied for judicial review by action HCAL 57 of 2022 for leave for judicial review of the Director’s Decision.  Their application was dismissed by this Court with a Restrictive Proceedings Order against them on 5 July 2022. 

4.  The applicant agreed to the facts above.  His application was therefore dealt with accordingly. 

5.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party. 

The applicant                       

6.  The applicant is a national of Bangladesh.  He was a visitor in Hong Kong, but he overstayed since 28 June 2006.  On 25 April 2007, police arrested him for the offence of possessing counterfeit goods for sale.  He was convicted and sentenced to 6 months’ imprisonment.  In January 2008, he committed the same offence and was convicted and sentenced to 3 months’ imprisonment.  He had made torture claim to the Director, who refused his application.  He appealed to the Board, which dismissed his appeal.  He raised a non-refoulement claim on the applicable risks under paragraph 9 other than Torture risk. 

7.   According to the applicant, if he returns to Bangladesh, he will be harmed or killed by his friend Shahid because he knew Shahid’s secrets such as murdering a lawyer of the Bangladesh National Party.  

8.   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/HCAL003257_2019_files/the_Board's_Decision.pdf.

The Director’s Decision

9.  The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  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

c.  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”). 

10.  By way of Notice of Decision dated 31 May 2018 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.  Besides, state protection is available and internal relocation is viable, which will mitigate or neutralize the applicable risks. 

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board.  On 25 June 2019, the Board conducted an oral hearing for his appeal.  The applicant had given oral evidence and answered the Board’s questions.  

12.  Having considered the evidence, the Board found that:

(1)  it had serious concern about the veracity of his claims as his evidence was incoherent and contradictory; [74]

(2)  although it accepted that the applicant might involve some criminal activities in association with Shahid, it did not accept that there were any charges laid against him and Shahid would still hold any adverse interest in him for the reasons he claimed; [78]-[80] and

(3)  it did not accept that the applicant would face any real risk as he alleged if he returned to Bangladesh.  [81]

Application for leave to apply for judicial review of the Board’s Decision

13.  The applicant has filed Form 86 dated 1 November 2019 for leave to apply for judicial review of the Board’s Decision. 

14.  In his affirmation in support of his application, the applicant raised the following reasons:

(1)  Procedural impropriety: failure to consider my fear that I would return to my country of origin;

(2)  Procedural impropriety: failure to consider my fears that under BOR 3 risk;

(3)  Error or misdirection: failure to re-consider my appeal by the Board, that my life would be at danger

DISCUSSION

15.  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). 

16.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  Before me, when asked if he considered the Board was wrong in its decisions, he said that the Board was not wrong.  Those reasons under paragraph 14 become insignificant.  They are bare assertions without any evidence in support. 

17.  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.”

18.  The applicant has raised no valid ground to challenge the Board’s findings.  

19.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision. 

DISPOSITION

20.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his 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