SHEKH NAZRUL v. TORTURE CLAIMS APPEAL BOARD

HCAL 2113/2020

[2025] HKCFI 5613

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2113 OF 2020

Application for leave to apply for judicial review

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

Following:

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 and filed on 22 October 2020, 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 27 December 2019 (“the Board’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002113_2020_files/the_Board's_Decision.pdf

2.  The Board decided that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board affirmed the decision of the Director of Immigration dated 28 November 2018, which rejected the applicant’s non-refoulement claim. 

The applicant’s case

3.  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.

4.  In sum, the applicant raised his non-refoulement claim because his life would be in danger if he were to return to Bangladesh.  He was a member of the Bangladesh Nationalist Party (“BNP”), and members from the Awami League (“AL”) had attacked him and threatened to kill him.

Late application

5.  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.

6.  However, the applicant filed Form 86 on 22 October 2020, which was more than nine months after the Board’s Decision (made on 27 December 2019).  The applicant was hence late for more than six 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.

7.  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.

8.  The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application.  At the oral hearing before this court on 18 September 2025, the applicant explained his delay by saying that he had a health problem, ie he had much pain at his forehead and right eye region, and he needed to wait for some time before making the Leave Application.

9.  The delay of more than 6 months is substantial and the applicant’s explanation for the delay is not satisfactory at all.  It is just inconceivable that the alleged pain could last for more than 6 months and prevented him from making the Leave Application, especially when the applicant did not submit any medical certificate in respect of the alleged health problem.

10.  More importantly, as discussed below, there is no merits of the intended judicial review at all.  Thus, this court is not prepared to extend the time for the applicant to file the Leave Application, even if an application for extension of time was made.  The Leave Application can be dismissed on the ground of being made out of time alone.

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

Oral hearing

12.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 18 September 2025.

13.  At the hearing, the applicant said that he found nothing wrong with the Board’s Decision, but he requested to stay longer in Hong Kong as he still had problem in Bangladesh.

Grounds for judicial review

14.  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).

15.  However, the applicant did not advance any grounds for judicial view in Form 86, nor in his supporting affirmation dated 22 October 2020.  He merely stated in the affirmation that he did not agree with the Board’s Decision.

16.  As aforesaid, the applicant also failed to advance any ground for the intended judicial review at the oral hearing before this court.

Discussion

17.  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).

18.  Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

19.  In assessing the appeal by the applicant, the Board held an oral hearing on 4 November 2019.  The applicant was present and was given the chance to present his case to the Board in person. 

20.  As can be seen from the Board’s Decision, the Board had considered the applicant’s case carefully but found no reliable evidence that the applicant had been a member of BNP since 2014 or that he had been the vice president of a student wing of BNP.  In fact, the applicant only made bare assertions and provided no objective proof at all.  

21.  Even if he was a BNP member and was the vice president of a student wing of BNP, the applicant agreed at the Board’s hearing that he was only involved in a grassroot level.  The evidence adduced showed that a grassroot level member of BNP like the applicant would have been unlikely to give rise to a well-founded fear of persecution from AL or its members.  It was disproportionate, implausible and illogical for AL people to persecute the applicant, simply because he supported BNP.

22.  The Board accepted that the applicant was attacked once in April 2015.  However, it was the applicant’s evidence that the injuries sustained were not serious injuries, and it was not necessary for him to seek medical treatment afterwards.  The applicant alleged that the 15 to 20 AL people who attacked him were armed with wooden sticks.  The Board considered that they could have easily exerted further harm or even kill the applicant if they had been minded to do so.  Thus, there was no ground to believe that the applicant would be tortured or seriously harmed if he were returned to Bangladesh.

23.  Further, the Board found that the applicant remained unharmed and unfound when he was in Khulna, and no AL people threatened or harmed his family members.  The family members were not troubled with demands for whereabouts of the applicant.  The Board therefore found that the dispute between the applicant and his enemies was limited to village level.  There was no evidence to suggest that the applicant’s enemies had the resources or ability to locate him outside his home village in Bangladesh.

24.  The Board also found that there was no involvement at any stage by a public official or person acting in an official capacity.  The AL people who attacked the applicant were non-state actors.

25.  Further, the Board found no evidence that the government and/or state and/or other authorities in Bangladesh had acquiesced in the alleged ill-treatment of the applicant.  The applicant did not complain to the police or to the higher authorities or to the court of the attack and of the verbal threats he received.  The Board found from reliable, fully referenced country of origin information that reasonable state protection and complaint mechanisms were in place in aid of Bangladeshi citizens like the applicant.  

26.  As for the applicant’s claimed fear from the general situation of violence in Bangladesh, the Board found that although there were ongoing political conflicts between AL and BNP, there was no specific grounds showing that the applicant would be personally at risk.

27.  Hence, the Board concluded that there was no, or no reliable evidence that the applicant would face any real risk of ill-treatment, torture, persecution or arbitrary deprivation of life if he were to return to Bangladesh.

28.  Given its findings as outlined above, the Board adopted the 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).  Hence, the Board considered that it was unnecessary to make findings on the viability of internal relocation for the applicant.  This is clearly correct.

29.  The finding of facts was solely within the ambit of the Board.  The Board was entitled to make its own decision.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

30.  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. 

31.  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

32.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for devoid 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