MEZANUR REHMAN alias MEZAN UR REHMAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1489/2021

[2026] HKCFI 3263

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1489 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and the applicant being absent in open court;

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 21 October 2021 and filed on 26 October 2021, 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 20 April 2017. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001489_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had not substantiated a case for non-refoulement protection on the grounds of Torture Risk[1], BOR 3 Risk[2] and Persecution Risk[3] under the Unified Screening Mechanism (“the USM”). Accordingly, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 26 January 2015 and confirmed the same, which rejected the applicant’s non-refoulement claim.

3.  After the Board’s Decision, on 26 June 2017, the Director made a further decision in respect of the applicant’s BOR 2 Risk[4] and decided that the applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights being violated (including right to life under BOR 2) upon his return to Bangladesh. The applicant did not petition to the Board against the Director’s further decision. Thus, the applicant’s BOR 2 Risk had also been finally determined.

Late application

4.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

5.  However, the applicant filed Form 86 on 26 October 2021, which was more than 3 years and 6 months after the Board’s Decision (made on 20 April 2017). The applicant was hence late for more than 3 years and 3 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

6.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(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.

7.  The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application.

8.  A delay of more than 3 years and 3 months is very substantial, and there is simply no reason for this court to grant an extension of time for the applicant to file the Leave Application when no explanation was given by the applicant at all. More importantly, there is no merit in the intended judicial review as discussed below.

9.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

10.  However, for the sake of completeness, this court will still examine the merits of the Leave Application.

The applicant’s case

11.  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.

12.  In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, he feared harmed by the people who kidnapped him in 2007. The applicant claimed that he had been kidnapped by a customer called Swapna and her three brothers, he was being slapped on the face and was forced to take pictures with Swapna without clothes. Having arranged to pay 5 lakh taka, he was released, but the kidnappers did not give the picture roll to the applicant. Around 25 days after the kidnap, the applicant received a call from one of the kidnappers but he was too scared to give any reply to him.

13.  The applicant subsequently learnt from some acquainted villagers that the kidnappers could be from an anti-government organization called Purbra Bangla Communist Party. Around the same time, the applicant received one phone call and the person on the phone told the applicant that they were looking for him and would let him go if he paid 10 lakh taka. The applicant did not report to the police but arranged to travel to China and sneaked into Hong Kong.

Oral hearing

14.  The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 28 May 2026.

15.  As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

16.  Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Grounds for judicial review

17.  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).

18.  The applicant did not identify any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 26 October 2021.

Discussion

19.  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).

20.  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.

21.  In assessing the appeal/petition by the applicant, the Board arranged an oral hearing on 22 August 2016. Thus, the applicant was given the opportunity to present his case to the Board in person. However, the applicant was absent at the hearing and did not respond to the Board’s letter requiring him to provide explanation for his absence in writing with documents in support within 7 days from the date of the said letter. Thus, the Board proceeded to determine his appeal/petition based on the available materials.

22.  As can be seen from the Board’s Decision, the Board had given a detailed analysis of the applicant’s claims and its reasoning in rejecting the applicant’s claim for non-refoulement protection.

23.  Having considered the evidence of the applicant as a whole, the Board found the pain and suffering of the applicant did not amount to the level of severity required by the definition of Article 1 of the CAT[5], and the complained acts did not amount to torture as defined under Section 37U of the Immigration Ordinance (“the Ordinance”). The ill-treatment he suffered was not for a purpose listed in the aforesaid section of the Ordinance nor for a Convention reason, but for ransom. It was a private matter between the applicant, Swapna and her three brothers. It was a criminal act of Swapna and her brothers. There was no evidence that Swapna and her brothers were imbued by the state.

24.  The Board also found that, at the time of the Board’s Decision, 10 years had lapsed since the kidnap incident. The applicant’s assertion that the kidnappers were still looking for him was his own speculation. There was no evidence to show that the kidnappers were still interested in him, or that the kidnappers indeed came from the anti-government organisation called Purbra Bangla Communist Party.

25.  The applicant in fact never reported the criminal acts of the kidnappers to the police. There was no evidence that the police of Bangladesh, the government of Bangladesh or any other authorities deliberately did anything against the applicant.

26.  From the country of origin information (“COI”), the Board accepted that the government of Bangladesh provided reasonable protection to its citizens. There was no evidence to show that the police would not investigate the matter of the applicant if he made a report. Based on the latest information of Bangladesh, it was clear that state protection was available and would be efficiently provided to him.

27.  Thus, the Board concluded that the applicant had not substantiated a case for non-refoulement protection of the grounds of Torture Risk, BOR 3 Risk and Persecution Risk under the USM.

28.  Although the Board did not make findings as to internal relocation for the applicant, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

29.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

30.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision. The applicant’s alleged danger had been fully considered but rejected by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

31.  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.

32.  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

33.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.

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