SAKIB, MD SAJIB SHAK v. TORTURE CLAIMS APPEAL BOARD

Application for leave to apply for judicial review

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

Following:

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision delivered on 6 February 2025”.

2.  The applicant’s application for extension of time to file the application for leave to apply for judicial review be refused.

3.  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 22 September 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 6 February 2024.

2.  However, it is clear that the Board had stated the date of its decision wrongly as 6 February 2024.  The Board was dealing with the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 12 June 2024 (“the Director’s Decision”) and held an oral hearing for the applicant to attend on 20 January 2025.  It is impossible for the Board’s decision to predate the Director’s Decision and the oral hearing.

3.  The Board in fact delivered its decision to the applicant by its letter dated 6 February 2025.  Thus, the Board’s Decision delivered on 6 February 2025 (“the Board’s Decision”) should have been dated 6 February 2025 instead of 6 February 2024.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL002134_2025_files/the_Board's_Decision.pdf

4.  The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board refused the applicant’s appeal/petition and confirmed the Director’s Decision, which rejected his non-refoulement claim.

Amendments

5.  The applicant named the Board / “Non-Refoulement Claims Petition Office” as both the putative respondents and the putative interested parties in Form 86, when only the Board should be the putative respondent and the Director should be the putative interested party.

6.  The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a party at all.

7.  This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

8.  As aforesaid, the decision in respect of which relief is sought should be the Board’s Decision delivered on 6 February 2025. Hence, on this court’s own motion, it is so amended.

Late application

9.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

10.  However, the applicant filed Form 86 on 22 September 2025, which was more than 7 months after the Board’s Decision (which was in fact made on 6 February 2025 as aforesaid).  The applicant was hence late for more than 4 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

11.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

12.  In the hand-written document annexed to his supporting affirmation dated 17 September 2025, under the heading “Reason of Delay”, the applicant made an application for extension of time to file the Leave Application and provided his explanation for the delay.  The applicant stated that the Board’s Decision was made while he was serving sentence in prison.  He did not know what to do and he was not provided with legal assistance.  He did not have the chance to apply for legal aid.  He only learnt from other detainees when he was transferred to Tai Tam Gap Correctional Institution after his release from prison that he could apply for judicial review and there was a time limit for the application. Moreover, it took him another few weeks to find someone who could read and write English to help him to fill in the application for judicial review.

13.  At the oral hearing before this court on 2 December 2025, the applicant again explained that the delay was due to his imprisonment.  He also said that he had mentioned to the Board during the Board’s hearing that he had multiple health issues physically and mentally.  However, when this court asked the applicant what health issues he had, he simply said that he could not keep anything in memory and that was all.

14.  The delay of more than 4 months is substantial and the explanation provided by the applicant is unsatisfactory.  Ignorance of the law or the court’s procedures is not generally an excuse for delay.  More importantly, there is no merits of the intended judicial review as discussed below.

15.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application.  The applicant’s application for extension of time to file the application for leave to apply for judicial review is refused.  The Leave Application can therefore be dismissed on the ground of being made out of time alone.

16.  However, for the sake of completeness, this court will still examine the merits of the Leave Application.

The applicant’s case

17.  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.

18.  In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, he would be harmed or killed by persons associated with the Awami League (“AL”) as he was a supporter of the Bangladesh Nationalist Party (“BNP”).  The AL people had attacked him 3 times and threatened to kill him.  So he left his country to save his life.

Oral hearing

19.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 2 December 2025.

20.  When this court asked the applicant to elaborate on the grounds of his intended judicial review contained in the hand-written document annexed to his supporting affirmation dated 17 September 2025, under the heading “Grounds of Judicial Review”, he did not do so but said that he could not go back to his country because of political problems.  He was detained in custody in Hong Kong for 11 months and there was uprising in Bangladesh during the time when he was detained.  Members of the opposite political party attacked his family members. Just two days ago, the AL gangsters attacked an assembly of 200 BNP members. In the past 6 months, 200 to 300 BNP members had been killed and the leader was shot while he was in a car.  The leader was not able to return to Bangladesh because of the lack of security.  He could give documents to support his claim.

21.  The applicant also said that his father and wife told him recently over the phone that he should not return in this situation.  He was married 6 years ago in Bangladesh and they have a son.  He was anxious to go back to see the son but his wife told him not to go back because his life would be in danger in Bangladesh.  Hence, he wanted to save his life by staying here.

Grounds for judicial review

22.  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).

23.  The applicant advanced 2 grounds for his intended judicial review in the 10-page written submission under the heading “Grounds of Judicial Review”, where he challenged the Board for: (1) “mis application of the test on internal Relocation”; and (2) “Illogical And/or irrational Findings”.

24.  As mentioned above, the applicant did not elaborate on any of the above-mentioned grounds at the oral hearing before this court.  

25.  Moreover, he mentioned under the heading “Reason of Delay” in his written submission that he was not provided with legal and language assistance, thus rendering him late in making the Leave Application.  Although the applicant did not make these assertions under the heading “Grounds of Judicial Review” in his written submission, this court will still deal with them in the discussion that follows.

26.  The applicant also mentioned under the heading “Reason of Delay” in his written submission and at the oral hearing before this court that he told the Board he was not in good health both physically and mentally but the Board still proceeded to hear his appeal/petition.

27.  At the oral hearing before this court, as aforesaid, he mentioned some recent events that happened in Bangladesh and that he had documents to support his claim.

Discussion

28.  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.

29.  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. 

30.  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.  The recent events and situation in Bangladesh happened after the Board’s Decision and thus cannot be used to challenge the Board’s Decision either.

31.  In respect of the applicant’s allegation that there was a lack of legal advice and language assistance, the applicant was actually provided with legal assistance during the first-tier screening of his non-refoulement claim.  The Court of Appeal has repeatedly emphasized that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37).  Thus, there is no substance in this allegation.

32.  Likewise, it is trite that the high standards of fairness required by law would not entail interpretation service being made available at any time the applicant desires (see Re Gurnishan Singh [2018] HKCA 704 and Re Gurung Sagar [2019] HKCA 658).

33.  In fact, all the documents filed by the applicant in relation to the Leave Application were written in English.  This indicates clearly that the applicant is either familiar with the English language or he has access to such language assistance if needed.  The applicant cannot claim that he has been prejudiced at all.

34.  As to the applicant’s complaint that the Board proceeded to hear his appeal/petition despite his request to adjourn the hearing because of health issues and stress due to his imprisonment, the Board had specifically mentioned in paragraphs 24 to 30 in the Board’s Decision about the procedural history of the Board’s hearing.  The Board further elaborated in paragraph 63 why it was not satisfied that there were any persuasive reasons as to why the hearing should be adjourned for several months.

35.  In essence, the applicant was absent at the first hearing scheduled on 23 September 2024.  The Board arranged another hearing on 14 November 2024 after being advised that the applicant was in prison.  However, the hearing was cancelled due to typhoon warning.

36.  Prior to the hearing, the applicant sent a letter to the Board dated 27 October 2024 and requested an adjournment because he was in prison and broken mentally.  He stated that his brain did not work, he was physically sick and could not sleep, and suggested that the hearing be adjourned until after his sentence ended on 27 June 2025.  The Board considered the applicant’s request and rescheduled the hearing to 20 January 2025.

37.  At the hearing on 20 January 2025, the applicant again requested that the hearing be adjourned until he was released from prison.  The Board advised the applicant that his request had been considered but the hearing would proceed.

38.  As could be seen from paragraph 63 of the Board’s Decision, the Board only asked the applicant very basic questions about the integral aspects of his claims. The Board was not satisfied that there was any evidence indicating that his imprisonment in Hong Kong had had any significant psychological effect on his ability to answer questions about basic aspects of his claims.  The Board also did not accept that the applicant needed more time to prepare his case outside of the hearing since he was asked only very basic questions that were integral to his claims.

39.  Although the applicant expressed his dissatisfaction in his written submission about the Board’s decision to proceed to hear his appeal/petition despite his request for adjournment, the applicant did not state or elaborate how that had prejudiced him or caused any unfairness to him.  He failed to lay out what he would have told the Board or what evidence he could have produced if the hearing was adjourned as requested.  This ground is simply not arguable.

40.  This court now turns to discuss the two grounds that were specifically asserted under the heading “Grounds of Judicial Review” in his written submission.

41.  The applicant elaborated his first ground, namely “mis application of the test on internal Relocation” on pages 4 to 6 of his written submission.  The applicant challenged that the Board did not make a proper assessment of the level of risk.

42.  It is not necessary for this court to repeat the applicant’s argument in full here, but suffice to say that the applicant asserted that if he went back to Bangladesh, he as a member of BNP would face torture until death.  He referred to paragraph 54 of the Board’s Decision that discussed the country of origin information (“COI”) showing almost 10,000 opposition activists were arrested and at least 16 people were killed during the ongoing violence.

43.  In relation to the same ground, the applicant challenged that there was no or inadequate consideration whatsoever by the Board of the practicalities which he could face upon relocation and hence it was not possible to consider whether it would be unduly harsh for him.

44.  As can be seen from paragraphs 64 to 68 of the Board’s Decision, the Board had given full and detailed reasoning as to why it did not accept the applicant’s claims as truthful and why it was drawn to the conclusion that they had been manufactured to provide a basis for him to remain in Hong Kong.

45.  Significantly, the Board found from updated COI that AL was no longer in power in Bangladesh at the time of the Board’s Decision.  In view of the changed political situation, the Board was not satisfied that there was any reason why the applicant would be pursued or harmed by members of AL even if he returned to his home area.

46.  The applicant’s claims were in fact rejected in their entirety.  As such, it was actually not necessary for the Board to consider internal relocation.

47.  It is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997).  In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

48.  As the Board had rejected the applicant’s claims in their entirety and found that the applicant had no real risk of any of the proscribed forms of harm, it was actually not necessary for the Board to consider internal relocation.

49.  Nevertheless, the Board found that the applicant was able to live safely for several weeks when he moved to different locations away from his home area, and there was a lack of evidence that the applicant would be pursued or harmed by persons associated with AL or any others if he returned to another area of Bangladesh.

50.  Thus, the Board did assess viability of internal relocation for the applicant when it was not necessary to do so as aforesaid.  This court finds nothing wrong in respect of the Board’s finding on internal relocation, especially when AL was no longer in power in Bangladesh at the time of the Board’s Decision.  The Board had in fact considered the practicality of internal relocation for the applicant as it found that the applicant was able to live safely for several weeks in different locations away from his home area.  The applicant, on the other hand, did not raise any other matters suggesting that it would not be practical for him to have internal relocation.  He cannot challenge the Board’s Decision in this aspect in vacuum.

51.  In any event, even assuming that the Board’s finding on internal relocation was flawed, its finding on the applicant’s credibility, which led to its conclusion that the applicant’s claims were likely to have been fabricated, was fully justified.  In other words, the Board’s finding that the applicant was not entitled to non-refoulement protection was not flawed.  It follows that even if the applicant can successfully challenge the Board’s finding on the viability of his internal relocation, his claim for non-refoulement protection will not succeed.

52.  This court now turns to discuss the last ground of the applicant’s intended judicial review, namely that the Board had made “Illogical And/or irrational Findings”.  The applicant elaborated this ground in pages 7 to 10 of its written submission.

53.  In gist, the applicant seeks to challenge the Board’s finding that low-level political involvement would not place him at harm.

54.  This court notes that the Board had considered extensive COI which not only showed the political unrest and chaos in Bangladesh but more importantly, the current political situation in the country as stated in paragraphs 55 to 61 of the Board’s Decision.

55.  The Board was aware of the changed political situation in Bangladesh where AL was no longer in power and an interim government headed by Nobel laureate Muhammad Yunus was set up.

56.  Thus, the Board’s finding that low-level political involvement would not place the applicant at harm was based on COI which clearly showed that there was a change of political situation in that AL was no longer in power.  The Board was not satisfied that the applicant had such an adverse political profile that would attract the attention of AL or any other parties if he returned to his home area in Bangladesh (see paragraph 68 of the Board’s Decision).

57.  This court finds nothing illogical or irrational in the Board’s finding that the applicant’s very low-level support for BNP would not attract the level of attention he claimed.

58.  Thus, none of the grounds advanced by the applicant is arguable.

59.  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.

60.  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

61.  For reasons aforesaid, the applicant’s application for extension of time to file the application for leave to apply for judicial review is refused.  The Leave Application is dismissed for being made out of time and also for lack of merits.

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