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HCAL 1750/2025
[2025] HKCFI 6256
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1750 OF 2025
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BETWEEN
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Hossain, Md. Monwar |
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 applicant’s name be amended to “Hossain, Md. Monwar” and “Director of Immigration” be added as the putative interested party.
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 4 August 2025 and filed on 7 August 2025, 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 24 July 2025 (“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/2025/HCAL001750_2025_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 15 May 2025, which rejected his non-refoulement claim.
Amendments
3. The applicant stated his name in Form 86 as “MD, MONWAR HOSSAIN”. However, according to the applicant’s Recognizance, his name should be written as “Hossain, Md. Monwar” and hence it should be so amended.
4. The applicant did not name any putative interested party in Form 86, when the Director should be so named.
5. Thus, this court makes an order on its own motion to amend the applicant’s name to “Hossain, Md. Monwar” and add “Director of Immigration” as the putative interested party.
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 harmed, ill-treated or even killed by the Bangladesh Nationalist Party (“BNP”) affiliates since he was and is an activist, a member and a worker of Jubo League, the youth wing of the Bangladesh Awami League (“AL”).
Oral hearing
8. The applicant requested for an oral hearing of the Leave Application and his case was heard on 2 December 2025.
9. When this court asked the applicant to elaborate on the grounds for his intended judicial review which were stated in his supporting affirmation dated 4 August 2025, he merely said that while he was detained at the Castle Peak Bay Immigration Centre, he could not contact his family members or obtain supporting documents for his claim. However, after his release, he was able to get some supporting documents to submit to the court.
10. This court then explained to the applicant that it was not for this court to receive new evidence in a judicial review. After the explanation, the applicant said that he came to Hong Kong to save his life, he wanted to stay here until the situation in his country became normal and if he went back to his country, he would be killed.
Grounds for judicial review
11. 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).
12. The applicant did not advance any grounds for his intended judicial review in Form 86. In his supporting affirmation dated 4 August 2025, he asserted that (1) he was a genuine non-refoulement claimant and faced dangerous problems, harassment and torture in his country; (2) the Director reached the wrong decision without proper inquiry; and (3) his problems were getting more and more life-threatening.
13. As mentioned, the applicant did not elaborate on any of the above-mentioned general grounds at the oral hearing before this court. He only wanted to submit documents to this court for consideration of his non-refoulement claim.
Discussion
14. First of all, if the applicant intended to submit new evidence to this court for consideration of his non-refoulement claim, it was not permissible. As held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, 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.
15. Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition.
16. Thus, the applicant cannot rely on any matters not presented to the Board for consideration to challenge the Board’s Decision. This court will not allow the applicant to submit further supporting documents.
17. As to the grounds raised in the applicant’s supporting affirmation, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). The complaint against the Director’s Decision can simply be ignored. This court will only deal with the Leave Application in respect of the Board’s Decision.
18. The applicant’s danger and problems had all been considered by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.
19. 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”. Thus, the general assertions put forward by the applicant in his supporting affirmation cannot help him at all.
20. This court therefore finds that none of the grounds advanced by the applicant constituted a valid ground to challenge the Board’s Decision.
21. 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, supra).
22. 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.
23. In assessing the appeal by the applicant, the Board arranged an oral hearing on 9 July 2025 and the applicant was present through video-conferencing system of the Immigration Department. Thus, the applicant was given the opportunity to present his case to the Board.
24. Having considered all the evidence and country of origin information (“COI”), the Board found that the applicant was only a low-rank worker and had not yet become a full member of AL or Jubo League worthy of target by BNP or the interim government after the downfall of AL government since 5 August 2024. Updated COI showed that low-level supporters and members of AL and auxiliary (student and youth) organizations, were unlikely to be of ongoing interest to the authorities.
25. In assessing the applicant’s claimed risk of harm, the Board had taken his case to its highest and treated the information or the evidence of the applicant as if they were accepted. However, the Board found that all the imminent danger the applicant portrayed was his own fear and suspicion only. In fact, he did not face any single and direct threat from the interim government or from BNP people or from any political party after 5 August 2024.
26. The Board found that BNP people harmed the applicant only once and that had occurred a very long time ago, in 2012. The applicant did not encounter any problem since then. The applicant’s fear arising from the downfall of AL government was merely his own speculation. The Board was not satisfied that the applicant’s life and freedom would be threatened on account of a membership of a particular political opinion if he was repatriated to Bangladesh.
27. The Board found that the applicant’s case did not support that BNP or any political party acted in official capacities or as government officials was involved in the verbal death threat, which was only hearsay, or the physical assaults claimed by the applicant. The Board concluded that the applicant did not face a genuine or substantial risk of being subjected to any of the proscribed forms of harm.
28. Moreover, the Board found the applicant’s assertion that the interim government would not protect him as his own suspicion and beliefs. The Board was satisfied that reasonable state protection would be available to the applicant in Bangladesh upon his return. Internal relocation was also a viable and safe option for the applicant given his age and his work experience.
29. Thus, the Board concluded that the applicant had failed to substantiate a case for non-refoulement protection on any of the applicable grounds under the USM.
30. 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.
31. 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.
32. 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
33. For reasons aforesaid, the Leave Application is dismissed.
Dated the 17th day of December 2025
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( Irene 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 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/Handed to the applicant/the applicant’s solicitors on:
17 December 2025
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:
17 December 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 26352
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 781/25
(formerly RBCZ 5000637/24) T4S14
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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