ISLAM SAIFUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1202/2021

[2026] HKCFI 1227

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1202 of 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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

The application for leave to apply for judicial review be dismissed

Observations for the Applicant:

1.  By a Form 86 filed on 27 August 2021 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) made on 19 August 2021 (“the Board’s Decision”). A copy of the Board’s Decision was attached to the Applicant’s supporting affirmation and can be viewed by the following hyperlink[1]. The Board’s Decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 28 May 2020.

2.  The Applicant is a Bangladeshi national. He claimed to be a supporter of a political party called Bangladesh Nationalist Party (“BNP”). His non-refoulement claim was based on an alleged risk of being harmed or killed by the people of a political party called Awami League (“AL”), including several of his uncles and cousins who had a land dispute with him.

3.  After an oral hearing, the Board came to the finding that the Applicant was not subject to any real or substantial risk of being harmed, killed, tortured or violated his fundamental human rights; neither was he under any well-founded fear of being persecuted so that he had to stay outside Bangladesh. In coming to this finding, the Board assessed the Applicant’s claim to be incredible as various answers given by him in the Board’s hearing differed materially from the factual account stated in his non-refoulement claim form and record of screening interview, which were generated in the tier-1 process handled by the DI. The Board also found certain aspects of the Applicant’s case inherently improbable.

4.  Furthermore, even if the Applicant’s assertions were to be believed, the Board found no evidence of torture risk under the consent/connivance of a public official or the extended meaning of State acquiescence. There was also no evidence of risks of loss of life or treatment attaining the minimum level of severity for the purpose of Article 3 of the Bill of Rights. The Board said while the Applicant referred to the conflict between BNP and AL, there was no evidence showing the past physical violence against the Applicant was inflicted on account of the Applicant’s political opinion; he in any event had no well-founded fear on such account because of his low level of political involvement. Overall speaking, the Board accepted that there was available State protection and reasonable internal relocation alternative.

5.  The Applicant has set out no ground of judicial review in the Form 86. It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the Board. In the absence of any errors of law, procedural unfairness or irrationality, this Court would not reopen the Board’s findings or make a determination on the case afresh. The role of this Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).

6.  During the oral hearing of this application, the Applicant indicated that he had certain documents to support his non-refoulement claim which had not been considered by the Board. Upon my enquiry, the Applicant said the relevant documents were generated on around 25 February 2021, which was after the Board’s hearing but before the Board’s Decision was given. The Applicant said the documents tended to support his assertion that his uncles and cousins, belonging to AL, had framed him up in a legal case in Bangladesh. The documents were, however, not with him in the oral hearing. He said he became aware of those documents around 11 months ago (i.e. long after the Board’s Decision was given).

7.  The Court of Appeal has recently held that the rules in Ladd v Marshall do not apply to an attempt to file new evidence, which had not been considered by the Board in its process, with the Court of First Instance (“CFI”) in support of an application for leave to apply for judicial review against the Board (Chidomere Christian Okechukwu v TCAB/NRCPO & Anor [2025] HKCA 694). This view is consistent with the principle in paragraph 5 above that the CFI does not consider a non-refoulement claim afresh and it just focuses on the process of the Board in considering and disposing of an appeal/petition. A corollary to that principle is that, it seems to me, all documents going to the substantive merits of a non-refoulement claim which were generated after the Board’s process or not placed before the Board should not be considered by the CFI at all, as they could not show any error, unfairness or irrationality on the Board’s part. If such new evidence really affects the substantive merits of a claim, e.g. a change of country of origin conditions or personal circumstances heightening a risk of ill-treatment, the evidence should be a matter left for DI’s consideration in the context of a potential “subsequent claim” under sections 37ZO and 37ZP of the Immigration Ordinance or other applicable policy statements, but not a matter to feature in an attempt to judicially review a previous decision. On one view, no such evidence should be allowed to be adduced at all, not to mention it was not even properly laid before this Court when the Applicant made reference to it during the oral hearing.

8.  That said, given the Applicant had been acting in person, I exercised my discretion to direct the Applicant to submit to the Court English translation of the documents he referred to within 7 days from the hearing on a de bene esse basis. In other words, the documents would be seen by this Court to determine if they should be admitted, but the actual decision on whether they would be admitted was reserved.

9.  The Applicant did comply with the direction. The new documents were apparently a Bangladesh judgment from a “Human Trafficking Crimes Prevention Tribunal” stating that the Applicant had been convicted of a charge under Section 7 of the “Prevention and Suppression of Human Trafficking Act 2012” and sentenced to life imprisonment. There was a section showing the Tribunal’s order, a section on what different “PW” (presumably prosecution witnesses) said in their depositions and what facts the Tribunal had accepted. The documents were also apparently notarized by a Notary Public in Bangladesh.

10.  However, there is no explanation how this document could assist the Applicant’s original non-refoulement claim. Certain parts of these new documents going to the facts of the case are quite difficult to comprehend. The names of the witnesses mentioned in the new documents are not the same as the names of the uncles and cousins mentioned in the Board’s Decision. The Applicant has not given his own version as to what happened in relation to this matter, explained why he considers himself being framed up or explained why the documents could not be produced earlier. In the circumstances, even if a standard analogous to Ladd v Marshall is applied, the “reasonable diligence” and “important influence” limbs of the rules are plainly not satisfied. In my judgment, such new documents should be refused to be admitted in the light of my explanation in paragraph 7 above. As a fallback position, admission of such documents should still be refused because they simply could not advance the Applicant’s case in either his non-refoulement claim or this leave application.      

11.  I have reviewed the Board’s Decision and all the related circumstances vigorously, but do not find this proposed judicial review reasonably arguable. The leave application is thus 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