AKON MD MURAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 1397/2024

[2026] HKCFI 4931

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1397 OF 2024

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 and filed on 22 August 2024, 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 25 July 2024 (“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/2024/HCAL001397_2024_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 29 April 2024 (“the Director’s Decision”) failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board affirmed the Director’s Decision, 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 claimed for non-refoulement protection because if refouled to Bangladesh, he would be at risk of harm from members of the Awami League due to his active support for and participation in the Bangladesh Nationalist Party (“BNP”). The applicant claimed that his mother had been and still was (at the time his case was assessed by the Board) a BNP member of the Union Council of the Union of Kalma, which encompassed the applicant’s own village of Basira.

Oral hearing

5.  The applicant requested for an oral hearing of the Leave Application, and his case was first heard on 21 October 2025.

6.  Since the applicant had applied for legal aid on 16 October 2025, this court enquired with him as to whether his legal aid application was decided. The applicant said that he could not submit documents to support his application for legal aid due to his detention.

7.  As the Director of Legal Aid (“DLA”) had not decided whether his application would be granted, this court adjourned the case to a date to be fixed pending the outcome of the applicant’s legal aid application.

8.  The hearing of the Leave Application was then scheduled to be heard on 20 August 2026, after DLA refused the applicant’s application for legal aid on 18 December 2025.

9.  However, the applicant was absent at the resumed hearing on 20 August 2026. The applicant only subsequently on 24 August 2026 called this court’s clerk and informed her that he missed the hearing on 20 August 2026 because he had gone to a wrong place on that day. This court’s clerk then asked the applicant to make a request for another hearing if he so wished in writing. Nevertheless, this court did not receive any written request from the applicant.

10.  In any event, the applicant’s reason for not attending the hearing on 20 August is implausible, as he had been to this court on 21 October 2025 and there was simply no reason for him to go to a wrong place. Even if he had gone to a wrong place on 20 August 2026, there was no reason for him not to call this court’s clerk on the same day but only on 24 August 2026. Thus, it appears to this court that the applicant was trying to delay the proceedings by not attending the hearing on 20 August 2026. This court is not prepared to grant him another hearing even if he had made a written request.

11.  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.

12.  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

13.  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).

14.  The applicant annexed a document to his Form 86 with the title “GROUNDS ON WHICH RELIEF IS SOUGHT”, which contained some general grounds for the intended judicial review. Further, the applicant advanced some more grounds under the heading “Background of the Applicant” in the said document, which bore essentially the same contents in his supporting affirmation dated 22 August 2024 under the heading “Factual Background”. The applicant basically complained that he was denied of a hearing for his appeal, and that the Board had relied on sources of news which were not officially recognized, or were hearsay or outdated.

15.  The only difference between the contents of the part under the heading “Background of the Applicant” in the document with the title “GROUNDS ON WHICH RELIEF IS SOUGHT”, and the contents in his supporting affirmation dated 22 August 2024 under the heading “Factual Background” was that the former has an additional paragraph numbered as paragraph 8.

16.  In the said paragraph 8, the applicant stated that:-

“8. If you needed some unsuccessful JR grounds, I would suggest that the credibility finding was unreasonable due to

(a) failure to give sufficient weight to documentary evidence (newspaper articles about incidents involving family); and

(b) failure to properly consider how the stroke affected the appellant’s memory (although memory not mentioned in medical report, raised by him).”

17.  The contents as stated in the above-mentioned documents were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It seems that the applicant had combined these standard grounds and used them without any regard to his own situation.

18.  As aforesaid, the applicant was absent at the resumed hearing on 20 August 2026. Therefore, no elaboration on the grounds stated in the above-mentioned documents was given.

19.  Nevertheless, as the applicant is relying on the said grounds to make the Leave Application, this court will still deal with the grounds as discussed below.

Discussion

20.  The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

21.  Thus, the general assertions put forward by the applicant in the document titled “GROUNDS ON WHICH RELIEF IS SOUGHT”, which merely contained “key words” such as the Board was “in breach of procedural fairness”, had “unlawfully fettered his discretion”, the Board’s Decision was “unreasonable or irrational”, or that the Board “failed to meet the greater care and duty owed to a self-represented claimant”, cannot help the applicant at all.

22.  His accusation that he was not given a fair opportunity to keep forward his submissions in an oral hearing was completely unfounded and plainly untrue. In assessing his appeal/petition, the Board held an oral hearing on 17 July 2024 and the applicant was present. Hence, the applicant was given the opportunity to present his case to the Board in person.

23.  The applicant also failed to identify which pieces of news or cases that the Board relied on were not officially recognized, or were hearsay or outdated. Contrary to the applicant’s accusation, this court finds that the Board had clearly identified the source of all country of origin information (“COI”) that it referred to in the Board’s Decision.

24.  This court now turns to deal with the aforesaid paragraph 8 under the heading “Background of the Applicant” in the document with the title “GROUNDS ON WHICH RELIEF IS SOUGHT”.

25.  First, it is unclear why the applicant would label the two sub-paragraphs as “unsuccessful JR grounds”. If he knew they were “unsuccessful grounds”, it is certainly not necessary for this court to go into depth regarding the allegations contained therein.

26.  Nevertheless, as can be seen from paragraph 5 of the Board’s Decision, the Board had laid out all the documents before it, but it did not appear that the applicant had submitted any documentary evidence to support his claim.

27.  Thus, the allegations contained in the said paragraph 8 were simply irrelevant to the applicant’s own case. There was no indication at all that he had submitted documentary evidence in relation to any incidents involving family.

28.  There was also no indication that the applicant had ever suffered from a stroke which affected his memory, or he had submitted any medical report to the Board.

29.  Even if the applicant did suffer from a stroke, his medical condition was not presented before the Board for assessment. The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

30.  Thus, this court finds that none of the grounds asserted by the applicant in the said documents constitutes a valid ground to challenge the Board’s Decision.

31.  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).

32.  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.

33.  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. The Board had laid out its findings and assessment of the credibility of the applicant’s claim in details in paragraphs 26 to 46 of the Board’s Decision, and it is not necessary for this court to repeat the same here.

34.  In gist, the Board found multiple significant inconsistencies and implausibilities in the applicant’s core claims. Significantly, the Board found that the applicant’s mother, whom the applicant alleged to be the actual candidate and then elected BNP official and a much more high profile BNP activist at Union Council level, was safe and had not apparently been subjected to political intimidation or verbal or physical violence. The Board found the applicant’s explanation for that, namely that his mother was a woman, neither made sense generally nor accorded with reliable background country information.

35.  After due consideration of the applicant’s evidence, the Board found that the indicators of credibility of the applicant’s case were all negative. In the circumstances, the Board concluded that the applicant had failed to discharge even the relatively light burden upon him in terms of his factual claims. The Board found that the applicant had only established his nationality as a national of Bangladesh.

36.  The Board further found no background information to suggest that merely by dint of that status, the applicant would face a real risk of any of the proscribed forms of harm.

37.  Thus, the Board concluded that the applicant had not substantiated a case for non-refoulement protection on any of the applicable grounds under the USM.

38.  Although the Board did not consider state protection and internal relocation, it was unnecessary to make findings on the availability of state protection as the Board found that the applicant did not face any real risk of harm.

39.  As to internal relocation, 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).

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

41.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

42.  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.

43.  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

44.  For reasons aforesaid, the Leave Application is 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