ALI MOHAMMAD LITON v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1453/2020

[2025] HKCFI 3589

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1453 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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

1.  Form 86 be amended on the court’s own motion as follows:-

a.  the name of the Putative Respondent be amended as the Torture Claims Appeal Board /  Non-Refoulement Claims Petition Office; and

b.  the Director of Immigration be named as the Putative Interested Party;

2.  Extension of time to file the application for leave to apply for Judicial Review) be refused; and

3.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 10 July 2020 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 27 December 2019 (the “Board’s Decision”).

2.  As (i) it is usual practice that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party; and (ii) to ensure that the parties are properly named, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.  An oral hearing was requested by the Applicant. It took place before me on 25 July 2025 (the “Hearing”) and the Applicant attended in person.

Background

4.  The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below[1] for reference. In summary, the Applicant claims that he would be killed by members of the Awami League (“AL”) if he returns to Bangladesh because of the Applicant’s membership in a rival political party known as Bangladesh National Party (“BNP”).

The Leave Application is out of time

5.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the Applicant has 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. Hence, the deadline for making the Leave Application is 27 March 2020. However, the Form 86 was filed late for about 3 months.

6.  In AW v Director of Immigration and William Lam CACV 63/2015 (unreported, 3 November 2015), the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. 

7.  In the present case, the delay of about 3 months is serious. No request has been made in his Form 86 and supporting affirmation for a time extension to file the Form 86 and no reason was given for the delay despite an express instruction to do so in the Form 86.

8.  At the Hearing, the Applicant claimed that he did not receive the Board’s Decision and he only found out about it later. However, he was unable to provide me with any detailed explanation as to the time and circumstances in which (i) he found out about the Board’s Decision; and (ii) he made the current Leave Application. He claimed that he hired a private lawyer called “Mr. Mike” who had prepared all the papers and he just signed. There is also no documentary evidence to support the Applicant’s account.

9.  In my view, the most crucial factor in deciding whether to exercise my discretion to extend time is the merits of the Leave Application. If it is bound to fail, no meaningful purpose can be served by granting leave even if I am prepared to assume in favour of the Applicant that he has an innocuous explanation for the delay. Hence, as a matter of expediency, I should focus on the merits of the Leave Application.

Merits

10.  It is trite law that:-

(1)   Determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  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: see 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.]

(2)   An applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142.

11.  In the Form 86 and the accompanying supporting affirmation, the Applicant did not advanced any specific grounds in support of the Leave Application.  He only made general allegations: (i) he was a genuine non-refoulement claimant and the Board’s Decision was wrong; and (ii) the Board had failed to conduct a proper inquiry to under the Applicant’s situation; (ii) he would be killed if he returns to his home country.

12.  Yet, the Applicant has failed condescend to particulars as to how the Board’s Decision is said to be wrong and how the Board had failed to conduct a proper inquiry of his case. He just insisted that he was telling the truth even though there may be other claimants from Bangladesh who have mounted false non-refoulement claims.

13.  Having rigorously examined the Board’s Decision, the papers 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 all applicable grounds and observed a high standard of fairness. In particular, the Board was entitled to find that there was no real risk of harm having regard to the circumstances (§73), including the following:-

(a)   The Applicant was only an ordinary member of the BNP with no leadership role. It was unlikely that he would be specifically targeted by AL for political reasons (§§61, 64-65).

(b)   Throughout the entirety of the Applicant’s claim, he was only physically attacked once in June 2013 when he suffered only minor injury The assailants (which consisted of about 20 AL affiliates) could have easily killed or seriously injured the Applicant if they wished to (§§9(b), 66-67, 78).

(c)   Even though the Board accepted Applicant’s evidence that he was threatened by AL people outside his hometown (Gobra), he remained unharmed despite the AL people having the multiple opportunities to cause him physical harm (§§68-69).

(d)   Having considered relevant Country of Origin information (“COI”), the Board was not satisfied that the general level of violence in Bangladesh had reached a sufficient level of intensity to pose a real risk of ill-treatment to the Applicant (§77).

14.  Hence, I am not satisfied that the Board has erred in the enhanced Wednesbury sense. I am also unable to see how there was any procedural impropriety in the proceedings before the Board or that it had failed to make any proper inquiries by failing to take into account relevant matters or taking into account irrelevant matters.

15.  At the Hearing, the Applicant also told me that:

(1)   He claimed that it was dangerous to go back to Bangladesh. Since 2024, the AL lost power and now there is no ruling party in Bangladesh. It is very dangerous to go back there. He claimed that as many as 3,000 police officers were killed in the chaos.

(2)   He did not want to be separated from his wife and son who are also in Hong Kong. They are also non-refoulement claims and that their claims were separately assessed but rejected by the Board.

16.  I do not give any weight to the alleged recent political developments in Bangladesh:-

(1)   The alleged political developments occurred subsequent to the Board’s Decision which was made in December 2019.

(2)   Such claims were only raised at the Hearing without proper affirmation evidence. The Applicant has also failed to adduce relevant and credible COI in support. Hence, these claims are at best bare assertions.

17.  I also do not see how the presence of the Applicant’s family in Hong Kong would assist his case:-

(1)   Even in the case where family members of a claimant are legal residents of Hong Kong, it is well-established that a family member   of a person who has no right to remain in Hong Kong cannot rely on the family member’s own rights under the Bill of Rights or the Basic Law to require the Director to grant a right to remain in Hong Kong to that other person: Comilang Milagros Tecson v Director of Immigration (2019) 22 HKCFAR 59 at §§57, 65 and 69.

(2)   In any event, as the non-refoulement claims of the Applicant’s wife and son have failed as well. There is no issue of family separation if they all return to Bangladesh.

(3)   For completeness, I have considered whether I should inquire about the status of the Applicant’s son and whether it was necessary to join the son as an additional applicant in accordance with the guidance of the Court of Appeal in Re Sri-Wahyuningsih [2023] 4 HKLRD 320 and Re Suliyati [2024] 2 HKLRD 222. However, in the present case, the Applicant and his wife and children were separately assessed by both the Director and the Board. Hence, I do not consider it necessary or appropriate to inquire about potential joinder of the wife and children as additional applicants in this case.

18.  Accordingly, the Applicant’s intended challenge of the Board’s Decision is not reasonably arguable with any realistic prospects of success.

19.  Hence, I do not see any reason to grant a time extension.

Conclusion

20.  In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed as it was made out of time.

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