HOSSAIN MOTAHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1407/2021

[2026] HKCFI 2344

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1407 of 2021

Application for Leave to Apply for Judicial Review

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

Following;

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

1.   Form 86 be amended as follows:- 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 7 October 2021 (the “Form”), the Applicant applied for 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 30 September 2021 (the “Board’s Decision”).

2.  In the Form, the Applicant named the adjudicator responsible for the Board’s Decision as the proposed interested party.  As it is trite that the Director of Immigration (the “Director”) should be the proposed interested party in an application of this sort, I make an order to amend the Form on the Court’s own motion.

3.  The Applicant requested an oral hearing for the Leave Application.  The hearing took place on 12 January 2026 and the Applicant attended in person.  In the hearing, the Applicant indicated that there were three cases against him in Bangladesh, two of which have already been adjudicated.  He said he was sentenced to five years’ imprisonment and that he will be arrested if he goes back to Bangladesh.  He asked the Court to review his case.  Save as aforesaid, the Applicant said he had nothing to say in respect of the Leave Application.

Background

4.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out 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 included below[1] for reference.

Discussion

5.  The applicable legal principles relating to application of this sort are well established.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board 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 (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

6.  The Applicant provided the following grounds in support of the Leave Application in the Form:-

(1)   It is trite law that the hearing before the Board is a rehearing and the Board is required to consider the application afresh.

(2)   The Board’s Decision was unreasonable or irrational in the public law sense, or was the result of procedural errors or unfairness.

(3)   The Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that it did not satisfy the requirement.

(4)   The Board had failed to meet the greater care and duty owed to a self‑represented claimant. 

(5)   The life and limb of the Applicant is in jeopardy and the Applicant’s fundamental human rights not to be subjected to torture is involved.

(6)   There is no indication that the Board interacted with the facts of the Applicant’s claims, or conducted any analysis of the supporting documents, or turned its mind to the grounds under consideration being the risk of violation of the Applicant’s right to life under BOR2.

(7)   The Applicant will face hardship if he is to return back to his country.  The Board had significantly relied on the source of news which is not officially recognized or is simply hearsay. 

(8)   The Board had relied on cases which are outdated considering the dramatic changes.  This had resulted in the Board making groundless speculation.

7.  I do not consider any of the above Applicant’s contention meritorious. I shall briefly set out my reasons below. 

8.  In relation to point (1), the Board had clearly considered and assessed the Applicant’s claims afresh.  In fact, two hearings were conducted on 4 September 2017 and 28 February 2019 to afford the Applicant opportunities to provide new evidence and make submissions on his claims (§7 of the Board’s Decision).  Considering the Board’s Decision as a whole, I am satisfied that the Board had in fact considered the Applicant’s claims afresh and I see no error in the process.

9.  In relation to points (2) to (8), these grounds are nothing but vague assertions without particulars or elaboration.  The Applicant has not particularized, let alone demonstrated, how the Board had acted unlawfully, unfairly, unreasonably or irrationally as alleged.  The Applicant equally failed to identify what source of news or cases relied upon by the Board was/were alleged to be “not officially recognized”, hearsay or outdated.  In the premises, I do not consider any of these grounds reasonably arguable.

10.  In addition, in relation to point (4), the Court of Appeal has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakhevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a claimant under Convention Against Torture (CAT), or a claimant under Articles 2 or 3 of Section 8 of the Hong Kong Bill of Rights Ordinance (Cap. 383) or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Ahmed Syed Rafiq [2018] HKCA 178, at §22.  In the present case, the Applicant was provided a fair opportunity to present his case before the Board on 4 September 2017 and 28 February 2019, and he was assisted by an interpreter in the Bengali language (§7 of the Board’s Decision).  I do not find anything amiss arising from the alleged lack of legal representation in the process before the Board.  I also note that at the hearing before the Board, the Applicant did not raise any complaint about the lack of legal assistance.  In any event, the Applicant has not particularized or explained how the Board has failed to treat the Applicant fairly during the process.

11.  Having fully and carefully considered 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.  The Board’s Decision was comprehensive with adequate reasons provided (see §§58-86 of the Board’s Decision in particular). It satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.  There is plainly no basis to say that the Board had failed to assess the Applicant’s claims properly.  

12.  In respect of what the Applicant said at the hearing on 12 January 2026, I do not regard the fact that the Applicant was sentenced to imprisonment in Bangladesh per se is a ground justifying non-refoulement.  The Board had duly noted that the Applicant did not even attempt to defend himself (§§76-78 of the Board’s Decision).  In any event, the Board found that the conditions the Applicant might face in prison, while harsh, would not reach the threshold of serious harm warranting international protection (§§83-85 of the Board’s Decision).  I see no error in such finding.

13.  In the premises, 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.

14.  Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).  Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me, as well as the grounds advanced by the Applicant.    

Conclusion

15.  In the premises, I make an order that the Form be amended as described above and that the Leave Application be 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