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HCAL 1490/2020
[2025] HKCFI 3476
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1490 of 2020
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BETWEEN
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Islam Saiful |
Applicant |
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and |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge (Non-refoulement Claims) Val Chow:
1. Form 86 be amended on the court’s own motion as follows:-
a. the name of the Putative Respondent be amended as Torture Claims Appeal Board / Non-refoulement Claims Petition Office; and
b. the Director of Immigration be named as the Putative Interested Party.
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 filed on 15 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 13 July 2020 (the “Board’s Decision”).
2. As it is trite that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party and to make sure 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 24 July 2025 (the “Hearing”) and the Applicant attended in person.
Background
4. The Applicant’s background, the basis of his claim, the procedural history 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 set out below[1] for reference. In gist, the Applicant claims that he will be killed by members of the Awami League (“AL”), a political party if he were to return to Bangladesh as he is a member of the opposing Bangladesh National Party (“BNP”).
Discussion
5. This type of leave application is intended to be a filtering process and elaborate reasons are not necessary (see Re Zunariyah [2018] HKCA 14, at §23). Hence, I shall give my brief reasons below.
6. The applicable legal principles relating to this type of applications are well established. The judicial review is not a further avenue of appeal. Though in non-refoulement cases, the Court will adopt a high standard of fairness to review the decision of the Board with anxious scrutiny due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (“COI”) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board. The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14).
7. It is trite law that, 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.
8. In his affirmation in support of the Form 86, the Applicant repeated his case and also made a general complaint that the Director (which I understand should be a reference to the Board) had failed to consider his situation with proper inquiry. Yet, he did not condescend into particulars as to how the Board has failed to consider his situation or what relevant matters were not considered by the Board.
9. Having perused the Board’s Decision, I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. There is nothing to indicate that the Board had failed to take into account any relevant matters. In particular, having considered the Applicant’s evidence on the key events in detail, the Board was plainly correct in rejecting the Applicant’s claim given that:-
(1) There was no evidence that Applicant had faced any trouble for his continuing support of the BNP between 2016 to 2018 (§46).
(2) Likewise, there was no threat to the Applicant after he met the individual named Azad who is said to be the chairman of the AL in Lakhai in February 2019. On his own evidence, the Applicant, nothing eventful happened until October 2019 (§§48-51).
(3) The Applicant had a private quarrel with two individuals called Sohel and Jewel in October 2019 when he hit Sohel’s head with a rod. There is no evidence to suggest the incident which occurred at the end of October 2019 had any connection with Azad (§§28-30, 52-54).
(4) On the available evidence, the Board was entitled to draw the inference that the real reason for the Applicant to flee his home country was that he had killed or seriously wounded Sohel and this had no connection to the alleged conflict between the AL and the BNP (§§57, 61).
(5) State protection was available. If the Applicant were to return to Bangladesh, he would serve his sentence for having injured or killed Sohel in the custody or police and prison officers who would protect him from Sohel’s associates (§§62-65).
10. At the Hearing, the Applicant said that the AL government was toppled in 2024 and an interim government has been established. He insisted that it would still not be safe for him to return until general elections are held and that the police is still under the control of the AL. He also claimed that AL associates were harassing his family by not allowing his family to keep his mother’s body in their family house after his mother had passed away after suffering from a heart attack.
11. I do not see how this can assist the Applicant’s case:-
(1) These events occurred after the Board’s Decision which was issued in 2020.
(2) In any event, they have not been properly raised in affirmation evidence. They are only bare assertions not supported by any corroborating evidence. The Applicant has failed to adduce any reliable COI on the latest political situation in Bangladesh.
(3) Even if I accept the Applicant’s account of the alleged harassment of his family members, it does not appear to me to be indicative of any real risk of serious harm should the Applicant return to his home country.
12. In short, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.
Conclusion
13. In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed.
Dated the 27th day of August 2025
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( Edison Ho )
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted
(Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave
(Order 53, rule 6(5)).
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Sent to the Applicant
on 27/8/2025
Islam Saiful
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 27/8/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 16929/20/5/18/B2150
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 136/20 (formerly RBCZ 10085/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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