SARKER NAZMUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1020/2022

[2026] HKCFI 3848

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1020 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.  The Form 86 be amended on the court’s own motion.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 29 September 2022, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 21 September 2022 (“Board’s Decision”) dismissing the applicant's appeal against the decisions of the Director of Immigration (“Director”) dated 27 October 2020 rejecting the applicant's non-refoulement claim on all applicable grounds[1] . The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL001020_2022_files/the_Board's_Decision.pdf

2.  In his Form 86, the applicant named the “Adjudicator” of the Board as the proposed respondent as well as the interested party. As the Board should have the proper putative respondent and the Director the proper putative interested party, the Form 86 shall be amended accordingly on the court’s own motion.

3.  The basis of the applicant’s claim was that, if refouled to Bangladesh, he would be harmed or killed by the Sunnis after the applicant’s conversion from his Sunni Muslim to the Ahmadi faith (which followers were known as Kadiani) who were against the Kadiani group to which the applicant belonged. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 7 May 2026. The applicant attended the hearing in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

5.  The leave application operates as a “filtering” process. Hence, there is no requirement or expectation to give elaborate reasons for my decision.[2] It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit. In his Form 86, the applicant averred that the Board’s Decision was unreasonable and irrational and was procedurally unfair in having relied on some cases which were outdated. The supporting affirmation provided no grounds at all.

7.  At the hearing, the applicant said that he had nothing to say or to add.

8.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[4]  In the present case, in assessing the applicant’s claims, the Board had regard to the relevant COI regarding the beliefs of the Ahmadi Muslim faith. It found that the applicant was not a truthful witness. The Board rejected the applicant’s claims regarding his conversion from the Sunni Muslim faith to the Ahmadi faith, and that he had been harmed, mistreated or his house vandalized. Although the Board accepted the applicant’s finger injury, however it did not accept that the loss of the tip of his finger was caused from an attack by a group of Sunni mem. Thus, the Board was not satisfied the applicant’s claimed fear of harm for the reasons he stated if refouled. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

9.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The applicant’s grounds stated in the Form 86 were vague and general, lacking particulars. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5].

Orders

10.  The Form 86 be amended on the court’s own motion.

11.  The applicant’s application for leave to apply for judicial review be dismissed.

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