MOLLIK KHOKAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 452/2022

[2026] HKCFI 3338

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 452 OF 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 4 January 2022 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 45-year-old national of Bangladesh who had previously entered Hong Kong illegally in 2008 and raised a torture claim which he subsequently withdrew and was in 2014 repatriated to Bangladesh, but some 4 years later on 7 January 2019 again sneaked into Hong Kong, and on 8 January 2019 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to Bangladesh he would be harmed or killed by his 4 cousins over their land dispute and/or their associates from the political party Awami League (“AL”) and/or by the local police officer for refusing to pay him extortion money. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Sornogora, Mourat, Pangsha, Rajbari, Bangladesh where he received no formal education and assisted his parents in their farming on some farmland which his father inherited from his grandfather, then married his wife from a neighboring village, and followed his father’s footstep to support the political party Bangladesh Nationalist Party (“BNO”) regularly attended their local meetings and activities in his home village.

3.  In 2000, due to ill health his father transferred his land to the Applicant, whereupon the 4 cousins of the Applicant started to steal crops and products grown on the land, and soon they came to demand the Applicant to transfer the land to them, and threatened to use their political connections with the AL people to harm and kill him if he failed to do so, and proceeded to beat him violently, and warned him that next time if he still refused their demand they would kill him with a knife.

4.  After the cousins had left, the Applicant sought help from the village elders but to no avail, and when his cousins later found out about it, they came to the Applicant’s home with their fellow AL supporters and dragged him out into the street and beat him with wooden sticks that he suffered cuts and bruises all over his body.

5.  After the assault the Applicant became fearful for his life and fled from his home village to take shelter in a relative’s home, and on 8 March 2007 he departed Bangladesh for China, and from there he later in 2008 sneaked into Hong Kong, and upon his arrest by the police he then raised his torture claim but which he subsequently withdrew after learning about his father’s illness and returned to Bangladesh in October 2014 to be with his father.

6.  In order to resolve their earlier dispute, the Applicant subsequently paid a sum of money to his cousins and their AL people, but soon a local police officer came to demand for the same payment from him, and threatened to arrest him if he refused to do so, and so the Applicant fled from his home village again to hide in his in-laws’ place in the neighboring village before moving on to other towns to look for jobs, and also took several trips to India and then China.

7.  On his last trip to China in December 2018, he again sneaked into Hong Kong on 7 January 2019 and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 10 May 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  Whilst released on recognizance pending the determination of his claim, the Applicant was arrested by police on 18 March 2019 for undertaking unauthorized employment, and for which he was subsequently convicted and sentenced to prison for 15 months.

9.  By a Notice of Decision dated 2 August 2019, 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”).

10.  In his decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by his cousins or their AL associates or some police officer from his home village upon his return to Bangladesh due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to extort land or money from him, that in any event in the absence of 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”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 159 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 adult with working experience to move to other areas of the country away from his home district in large cities such as Dhaka or Chittagong where it would be difficult if not impossible for anyone to locate him.

11.  On 14 August 2018, 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 20 October 2021 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submission made on his behalf by his lawyer. On 4 January 2022, his appeal was dismissed by the Board which also confirmed the Director’s decision.

12.  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 cousins or their AL associates or the local police officer over any land or money disputes that caused him to leave his country to come to Hong Kong to seek protection, that even if there might have been some land dispute between him and his cousins but on the basis of even his own case that it had been resolved by some payment made by him that there had since been no further incidents with his cousins or their associates, and that in any event in the absence of any evidence of any further threats from any of them for some 4 years prior to his last departure of Bangladesh in December 2018 that it is not accepted that he will face any such risk of harm from any of his perceived enemies upon his return to Bangladesh that it concluded that his claim for non-refoulement protection failed on all applicable grounds.

13.  On 10 June 2022, 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 in his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.

14.  By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

15.  As the last day of the three-month period for him to file his Form 86 fell on 4 April 2022, the Applicant was therefore more than 2 months late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

16.  In the Applicant’s case, a delay of more than 2 months must be considered as very substantial and inordinate, for which he explained at the hearing of his application that the court was closed at that time due to the COVID-19 pandemic that caused the delay with the filing of his Form 86.

17.  The records show that the decision was sent on the same day of 4 January 2022 to the Applicant’s then lawyer from DLS without being returned through undelivered post, and while it is true that all court proceedings had indeed been adjourned from 7 March to 11 April of 2022 for public health reasons due to the COVID-19 pandemic, the fact is that the Applicant still failed to file his Form 86 after the re-opening of the Registry on 12 April 2022 until some 2 months later on 10 June 2022. As such, I am not satisfied that the Applicant has provided any good or valid reason or justification for his serious delay.

18.  As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge, 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 merits in his intended application either.

19.  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.

20.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 80 – 93 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.

21.  Furthermore, the fact is that it has also been established by the Director in his decision that the risks of harm in the Applicant’s claim even if real are localized ones and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

22.  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.

23.  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 the absence of any good reason for his serious delay, I refuse to extend time and 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