HOSSAIN LAL CHAID v. TORTURE CLAIMS APPEAL BOARD

HCAL 766/2021

[2026] HKCFI 1191

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 766 OF 2021

Application for Leave to Apply for Judicial Review

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

Following:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 31-year-old national of Bangladesh who entered Hong Kong illegally on 19 April 2020 and was arrested by police some 3 months later on 21 July 2020. 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 certain local supporters of the political party Awami League (“AL”) as he supported their rival Bangladesh Nationalist Party (“BNP”).  

2.  The Applicant was born and raised in Kolkolia Para, Magura Sadar, Magura, Bangladesh. After leaving school he ran a store selling mobile phones and accessories in his home district to make his living, and supported BNP by regularly attending their local meetings and activities without holding any official post in the party.

3.  In 2018, some local AL supporters started to come to his store to threaten and harass him to stop supporting BNP, and on one occasion they beat him and pointed a gun at him threatening to kill him next time if he still refused to stop supporting BNP.

4.  As a result, the Applicant became fearful for his life and stopped supporting BNP or attending any of their activities, and for the following months those AL supporters just left him alone.

5.  However, one day in July 2019 those AL supporters came to his store to try to steal some of his goods, and when the Applicant tried to stop them, they punched him before fleeing from the store, but next day they returned to attack him with hockey sticks that he was struck on the head and collapsed onto the floor, whereupon they robbed all of his goods from the store and disappeared.

6.  After receiving treatments to his injuries in the hospital, the Applicant reported the attack and robbery to the police, but shortly thereafter those AL supporters came to his home to threaten to demand that he withdrew his police report or else they would kill him.   

7.  As a result, the Applicant became fearful for his life and fled to Dhaka to take shelter in a friend’s place, and on 27 January 2020 he departed Bangladesh 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 10 November 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).              

8.  By a Notice of Decision dated 28 December 2020, 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”).

9.  In his decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial ground for believing that there will be any real and substantial risk of him being harmed or killed by those local AL supporters upon his return to Bangladesh due to the 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 harass him and to rob 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 162 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 where it would be difficult if not impossible for those local AL supporters to locate him.

10.  On 11 January 2021, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he declined to attend any oral hearing and requested that his appeal be dealt with in his absence and on paper based on all the materials and information previously submitted by him to the Director in support of his claim and available in the hearing bundle before the Board, and which request was acceded by the Board. On 1 April 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision[1], the Board found no reliable evidence of any real intention of any local AL supporters to seriously harm or kill the Applicant other than just intimidation and harassments between supporters of rival political parties common in Bangladesh, nor is there any political reason for those AL supporters to specifically target the Applicant given that he was just an ordinary BNP supporter without any official post in the party, that the harassments from some of those AL supporters were in fact motivated by their intention to rob his store, and that in any event in the absence of 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 any AL supporters that his claim for non-refoulement protection failed on all applicable grounds.    

12.  On 26 May 2021, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)   That the Board reached the decision wrongly in assessing his non-refoulement claim;

(2)   That the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country.     

13.  These are however just some bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or what relevancy was extra-judicial killing to the Applicant’s case when on the factual basis of even his own case that it was just a case of robbery by those local AL supporters of his store without any political reason after all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, nor was he able to do so at the hearing of his application, I do not find any of them reasonably arguable for his intended challenge.

14.  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.

15.  In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision in the absence of any oral evidence from him but based on all the materials and information in the hearing bundle before the Board, 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.

16.  Furthermore, the fact is that it has also been correctly established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim 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.                

17.  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.

18.  For all these reasons, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly 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