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HCAL 386/2021
[2026] HKCFI 1295
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 386 OF 2021
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BETWEEN
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Kabir Humayun |
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. 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 March 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 23 February 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/HCAL000386_2021_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 his appeal/petition against decision of the Director of Immigration (“the Director”) dated 16 March 2020, which rejected the applicant’s claim for non-refoulement protection, and confirmed the same.
The applicant’s case
3. 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.
4. In sum, the applicant claimed for non-refoulement protection because he claimed that he was a supporter of the Bangladesh Nationalist Party (“BNP”) and that if he returned to Bangladesh, he would be harmed and killed by members of Awami League (“AL”).
Oral hearing
5. The applicant requested for an oral hearing and his case was heard on 3 February 2026.
6. When this court asked the applicant for the grounds of his intended judicial review, the applicant merely said that the present situation in Bangladesh was very bad, there would be an election in the coming months, and if the situation became normal in 3 to 4 months’ time, then he would be safe to go back.
Grounds for judicial review
7. 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).
8. The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 19 March 2021. He merely stated in the affirmation that he would be killed by his enemy if he returned.
9. As aforesaid, the applicant did not advance any ground for the intended judicial review at the oral hearing on 3 February 2026 either. He only wanted to stay in Hong Kong for a few more months.
Discussion
10. First of all, the applicant’s danger had been fully assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.
11. 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).
12. Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.
13. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 23 October 2020 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person.
14. As can be seen from the Board’s Decision, the Board had analyzed the applicant’s evidence with care and questioned the applicant to try to understand his claims better and to assess his credibility and his accounts of the events leading to his claim for non-refoulement protection. The Board found the applicant’s reasons for leaving Bangladesh and seeking non-refoulement protection in Hong Kong to be lacking in truth and devoid of all credibility.
15. The Board found the applicant’s claim that he was continuously pursued by AL implausible, as he was only a supporter and not even a member of BNP. Moreover, the BNP candidate he supported lost in the election in 2018, and there was no reason for members of AL to seek to harm him.
16. Moreover, the Board found that even if the applicant’s assertions in relation to the facts within his own knowledge were assumed to be true, the applicant only received injuries to his leg and back on one occasion in December 2018, when he was allegedly attacked by members of AL. Apart from that, the applicant at no time suffered any injuries of any description whatsoever, let alone injuries reaching a threshold of a degree of severity required to establish a claim for non-refoulement protection under the USM. The Board was not persuaded even to the low standard required that the applicant would be subjected to any ill-treatment if he were to be refouled to Bangladesh.
17. Given the applicant’s background, education and work experience, the Board found that internal relocation to Khulna or Rajshahi was viable for the applicant to alleviate any genuine fears he might have.
18. Thus, the Board was satisfied that the applicant did not have a real risk of being subjected to torture, ill-treatment, arbitrary deprivation of life or persecution if he were to return to Bangladesh, and concluded that the applicant’s claim for non-refoulement protection had failed on all the applicable grounds under the USM.
19. The finding of facts was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
20. 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.
21. 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
22. For reasons aforesaid, the Leave Application is dismissed.
Dated the 3rd day of March 2026
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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 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: 3 March 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: 3 March 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16825/20/3/53/B2137
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 9/20
(formerly RBCZ 10905/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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