MD NAZRUL ISLAM v. TORTURE CLAIMS APPEAL BOARD

HCAL 1010/2021

[2026] HKCFI 2627

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1010 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.   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 19 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 15 July 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/HCAL001010_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had failed to establish his risk of life would be violated upon refoulement on the ground of BOR 2 Risk[1] under the Unified Screening Mechanism (“the USM”).  Accordingly, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 24 April 2017, which rejected the applicant’s non-refoulement claim on the same ground under USM.

3.  The applicant’s non-refoulement claim had been assessed and rejected by the Director on all the other available grounds, namely Torture Risk[2], BOR 3 Risk[3] and Persecution Risk[4] previously on 8 April 2015.  His appeal/petition against the Director’s rejection of his non-refoulement claim on those grounds was dismissed by the Board on 27 January 2017.

4.  Thus, the applicant’s claim for non-refoulement protection on the grounds of Torture Risk, BOR 3 Risk and Persecution Risk had been finally disposed of, and it was not necessary for the Board to assess such risks in the Board’s Decision again (see G and others v Lam and others [2020] HKCFI 377).

The applicant’s case

5.  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.

6.  In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, he would be killed by members of the Bangladesh Nationalist Party (“BNP”) as he was a member of the Bangladesh Krishok League (which the applicant referred to as the Farmer’s League and claimed to be a branch of the Awami League (“AL”)) and he refused to leave the Farmer’s League to join BNP.  The applicant claimed that he had been kidnapped twice in 2005 by BNP members and associates and his wife continued to be threatened by these people after his departure from Bangladesh.

Oral hearing

7.  The applicant requested for an oral hearing of the Leave Application.  His case was heard on 23 April 2026.

8.  At the hearing, apart from confirming that the Board’s Decision was the subject matter of the Leave Application, the applicant merely mentioned that he came to Hong Kong to save his life as it was risky and dangerous for him to stay in his country.

Grounds for judicial review

9.  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).

10.  The applicant did not state any grounds for his intended judicial review in his Form 86, nor in his supporting affirmation dated 19 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.

11.  As mentioned, the applicant did not assert any grounds at the oral hearing before this court.  He merely said that it was risky and dangerous for him to stay in his country.

Discussion

12.  First of all, the applicant’s danger 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.

13.  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).

14.  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.

15.  In assessing the petition by the applicant, the Board held an oral hearing on 1 December 2020 (there was also an earlier hearing on 20 February 2019 but it was adjourned pending the determination of the appeal in G and others v Lam and others, supra).  The applicant was present and was given the chance to present his case to the Board in person. 

16.  As can be seen from the Board’s Decision, the Board had taken into consideration all the evidence before it, including the applicant’s original written claims, the applicant’s evidence at the Board’s aforesaid hearings, the documents provided by the applicant in support of his claims, and very extensive, fully-referenced country of origin information (“COI”).

17.  The Board had provided in paragraph 52 to 56 of the Board’s Decision a detailed assessment of the applicant’s claims and the reasons why it did not accept the credibility of the applicant’s claims as well as the two pieces of the applicant’s supporting documents, namely the letter from the Farmers’ League and a complaint to the police accusing the applicant of having seriously assaulted the complainant in 2008.  The Board also explained why it found that the applicant’s claim that BNP members could bribe the police and the courts to take action against people associated with AL unsupported by COI.

18.  The Board in fact found from COI that it was clear that AL, which was the party with which the applicant claimed to have been associated, controlled Bangladesh, and had done so since 2008.

19.  Given that the party to which the applicant claimed affiliation had been in power since 2008, the Board found that even if the applicant’s claim that he had problems because of his political opinions in Bangladesh in the past were accepted as credible, the applicant had established no basis for his claim that he would still have such problems were he to return to Bangladesh.

20.  Hence, the Board was not satisfied that the applicant had established that there were substantial grounds to support that he would face a real risk that his right to life would be violated if he returned to Bangladesh.

21.  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.

22.  For the sake of completeness, this court noticed that Mr Bruce Henry signed the Board’s Decision as “Adjudicator of the Non-refoulement Claims Petition Office” instead of “Member of the Torture Claims Appeal Board”.  This is not a correct description of his capacity, as he was not making the determination on behalf of the Non-refoulement Claims Petition Office.

23.  Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme).  Thus, only the members of the Board have the powers to hear and determine the applicant’s petition.

24.  Nevertheless, the wrong description of his capacity does not nullify the Board’s Decision, as Mr Henry was indeed a member of the Board and did have the power to determine the applicant’s petition. 

25.  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 ground, ie BOR 2 Risk, 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. 

26.  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

27.  For reasons aforesaid, the Leave Application is 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