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HCAL 1003/2021
[2026] HKCFI 2626
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1003 OF 2021
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BETWEEN
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Babul Mohammad |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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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 (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.
2. 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 16 July 2021, 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 26 May 2021 (“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/2021/HCAL001003_2021_files/the_Board's_Decision.pdf
2. The Board found that the applicant had failed to demonstrate that he was at risk upon refoulement on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 16 November 2018 and confirmed the same, which rejected the applicant’s non-refoulement claim.
Amendment
3. In Form 86, the applicant named “Torture Claims Appeal Board, Non-Refoulment Claims Petition Office” as the putative respondents, when only the Board should be so named.
4. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.
5. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.
The applicant’s case
6. 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.
7. In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, he would be killed by members of the Awami League (“AL”) as he was a supporter of the Bangladesh Nationalist Party (“BNP”) and had political dispute with them.
Oral hearing
8. The applicant requested for an oral hearing of the Leave Application. His case was heard on 23 April 2026.
9. At the hearing, apart from confirming that the Board’s Decision was the subject matter of the Leave Application, the applicant merely mentioned that it was risky and not safe for him to go back to his own country as he had political problems.
Grounds for judicial review
10. 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).
11. The applicant did not state any grounds for his intended judicial review in his Form 86, nor in his supporting affirmation dated 16 July 2021. In his affirmation, the applicant only stated that he was applying for judicial review against both the Board’s Decision and the Director’s Decision. Nevertheless, the applicant confirmed at the oral hearing before this court that the Board’s Decision should be the only subject matter of the Leave Application.
12. As mentioned, the applicant did not assert any grounds for his intended judicial review at the oral hearing before this court. He merely said that it was risky and not safe for him to go back to his own country as he had political problems.
Discussion
13. First of all, the applicant’s problems in his home country had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
14. 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).
15. 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.
16. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 26 March 2021. The applicant was present and was given the chance to present his case to the Board in person.
17. The Board had provided in paragraph 15 of the Board’s Decision a detailed analysis of the applicant’s claim and the reasons why it found the applicant’s account as set out in his Non-refoulement Claim Form to lack in detail, inconsistent with his account in other settings, or simply defied logic.
18. In gist, the Board was not convinced that (1) the applicant was ever a member of BNP or that he was involved with BNP or any political party in Bangladesh; (2) the alleged attack of the applicant in his shop took place as described, or at all; and (3) the alleged confrontation where AL people threatened to kill him after he refused to leave BNP and join AL was logical.
19. Thus, the Board was not convinced that the applicant was in danger if he were to return to Bangladesh.
20. Moreover, the Board found from country of origin information (“COI”) that the applicant would receive adequate state protection. Although the applicant’s allegation that the police would not protect him was supported by some COI, there was recent COI indicating that the Bangladesh Government had been taking practical steps to improve police effectiveness and to monitor the conduct of the Bangladeshi police.
21. In addition, the Board also considered relocation to avoid AL members was possible and not unduly harsh for the applicant. However, the Board did not believe that relocation was necessary, as the applicant was never hurt or threatened in his home village. Even on the applicant’s own account, all the events took place while he was in Dhaka, a place that was one and a half hours away from his home village. The Board did not consider that the applicant’s safety required to be protected by way of relocation.
22. Thus, the Board’s found that the applicant had failed to substantiate a case for non-refoulement protection on any of the applicable grounds under the USM.
23. 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.
24. 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.
25. 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
26. For reasons aforesaid, the Leave Application is dismissed.
Dated the 6th day of May 2026
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( Gladys LEE )
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 his 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/Handed to the applicant/the applicant’s solicitors
on: 06/05/2026
Applicant’s ref. no:
Nil |
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Sent/Handed 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: 06/05/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 14596/18/11/439/B1723
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 3710/18 (T2S9) (Formerly RBCZ 3001175/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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