SALAUDDIN MD v. TORTURE CLAIMS APPEAL BOARD

HCAL 1907/2025

[2026] HKCFI 2903

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1907 OF 2025

Application for leave to apply for judicial review

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

Following:

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

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 26 August 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 29 July 2025 (“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/2025/HCAL001907_2025_files/the_Board's_ Decision.pdf

2.  The Board found that the applicant did not face any real Torture Risk[1], BOR 2 Risk[2], BOR 3 Risk[3] or Persecution Risk[4]. Hence, the Board decided that the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 16 May 2025 (“the Director’s Decision”) failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”), dismissed the applicant’s appeal/petition and confirmed the Director’s Decision.

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 if refouled to Bangladesh, he would be harmed or killed by members of the Bangladesh Nationalist Party (“BNP”) in his home town in Mymensingh due to his affiliation with the Awami League (“AL”) and after the then Prime Minister, the then AL’s leader, resigned on 5 August 2024.

Disposal on paper

5.  The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

6.  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).

7.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affidavit dated 26 August 2025. In his affidavit, the applicant only mentioned that he needed justice and he was not satisfied with both the Director’s Decision and the Board’s Decision.

Discussion

8.  First of all, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, [2018] HKCA 549). Thus, this court will only deal with the applicant’s challenge against the Board’s Decision, which is the only subject matter of the Leave Application.

9.  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).

10.  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.

11.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 15 July 2025. The applicant was present and was thus given the chance to present his case to the Board in person.

12.  As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims.

13.  The Board had laid out its findings on the credibility of the applicant’s claims in paragraphs 42 to 51 of the Board’s Decision, and it is not necessary for this court to repeat the same here.

14.  In gist, the Board found the applicant’s evidence incredible and inconsistent, and disbelieved his claim that he was in fear of risk of being harmed and killed by members of the local BNP and other political parties opposite to AL. The applicant’s asserted belief that he would be subjected to such risk of harm was subjective and was not supported by evidence.

15.  Nevertheless, the Board still went on to assess the applicant’s case by taking it to its highest and assuming that his story of fearing to be killed by members of the local BNP and other political parties opposite to AL due to his previous support and membership of AL was true. Even on this assumption, the Board still found that the applicant was not entitled to non-refoulement protection on all the applicable grounds under the USM.

16.  The applicant’s own evidence was that he was not specifically targeted by BNP, nor by other opposition political parties in the aftermath of the resignation of the then Bangladesh Prime Minister in August 2024. He also admitted that his feeling of lack of safety at the time between August 2024 and February 2025 was due to the general deterioration of the law and order in Bangladesh, and not because he was singled out or targeted by BNP members and other political parties. The applicant actually had no idea who set fire to his family house and who made the life threats in the subsequent visits to his family thereafter. The applicant also did not know who tried to seek him out at the sports shop where he worked. As such, the Board found that it was just anybody’s guess that the applicant might be harmed by some unknown people in BNP or other opposition political parties in the future when he returned to Bangladesh.

17.  Moreover, the applicant and his family did not suffer any injuries in any event. The applicant was not present when the sports shop where he worked was allegedly vandalized. The total lack of injuries on the applicant in those incidents did not establish any substantial ground for the applicant to believe that there was a foreseeable and real risk in the future.

18.  There was also no evidence to link those unidentified people in the two attacks with members of the local BNP and other opposition parties. The Board found that the applicant’s claim of risk of being hunted down and killed across the whole country by those people due to his AL membership and previous involvement with AL too far-fetched and uncertain, and was unsupported by evidence.

19.  The Board considered that the applicant’s claimed risks was not real, and it was unlikely that his fear of being so killed or harmed would materialize.

20.  Further, there was no evidence of state acquiescence in the alleged incidents. The applicant’s claim about the Bangladeshi police’s unwillingness to provide assistance to him upon his return was not supported by credible evidence.

21.  The Board thus found that the applicant had failed to establish, even to the low standard required, that there was a real chance he would be subjected to any of the proscribed forms of harm if he was to return to his country. Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

22.  Although the Board did not make findings as to internal relocation, 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).

23.  As it was the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it was not necessary for the Board to consider internal relocation.

24.  The finding of facts relating to a non-refoulement claim, including the assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

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 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.

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