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HCAL 1551/2021
[2026] HKCFI 2770
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1551 OF 2021
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BETWEEN
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Rahman Md Moshiur |
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 9 November 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 4 November 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/HCAL001551_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”). Accordingly, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 27 March 2020 and confirmed the same, which rejected the applicant’s non-refoulement claim.
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, as a member and general secretary of the Bangladesh Nationalist Party (“BNP”) in his home village, would be ill-treated or killed by the Awami League (“AL”) people due to his active participation in BNP activities.
Oral hearing
5. The applicant requested for an oral hearing of the Leave Application and his case was heard on 7 May 2026.
6. When this court asked the applicant for the grounds of his intended judicial review, he merely replied that he had political problems in his home country, which had been presented to the Board, and he wanted to request for more time to stay in Hong Kong as it was risky for him to go back to his home country.
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 grounds for his intended judicial review in Form 86, nor in his supporting affirmation dated 9 November 2021.
9. As aforesaid, the applicant did not advance any grounds at the oral hearing before this court either. He only mentioned that he had political problems in his home country.
Discussion
10. First of all, the applicant’s political problems 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.
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, 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.
13. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 31 March 2021. The applicant was present and was given the chance to present his case to the Board in person.
14. As can be seen from the Board’s Decision, the Board found that the crux of the applicant’s case was based on his bare assertions that he was subjected to threats and violence after he was promoted to the position of general secretary of BNP less than one year since he joined BNP as an ordinary member in 2017. The applicant also alleged that AL people were angry with him for lodging a complaint against them for their unwarranted demand of money and threats made on him. He was assaulted by AL people and his shop was vandalized. He had to flee Bangladesh lest he would be harmed or killed by AL people. While in Hong Kong, his wife told him that a warrant for his arrest was issued against him in connection with a murder charge. The applicant claimed that he would be ill-treated or killed by AL people if he was refouled to Bangladesh.
15. The Board was not willing to attach any credence to the applicant’s evidence. The Board found the applicant to be an unreliable and incredible witness, and his purported encounter with AL people was a fabrication.
16. The Board had fully analyzed all aspects of the applicant’s claims in paragraphs 58 to 88 of the Board’s Decision. In gist, the Board did not accept that the applicant had ever joined BNP as an ordinary member, nor had he been promoted to general secretary. The applicant possessed no basic knowledge of BNP and the evidence regarding his purported BNP membership was questionable. The Board rejected that there were any grudges held against him by AL people which gave rise to his fear as claimed, and that there was a charge of murder against him.
17. Moreover, the applicant admitted to the Board that it was his speculations that all complaints against AL people were not processed and that he only relied on hearsay information related to him by other people. The applicant further admitted that he had no evidence to support his allegation of police killing people.
18. The Board found that reasonable state protection was in place and that internal relocation was a viable option to the applicant. The Board was not persuaded that AL people in his area would bother to spend time and resources to track him down or that the police would help AL people to locate him.
19. Thus, the Board concluded that the applicant had failed to establish, even to the low standard required, that there was a real risk he would face any of the proscribed forms of harm upon refoulement.
20. The finding of facts, 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. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
21. 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.
22. 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
23. For reasons aforesaid, the Leave Application is dismissed.
Dated the 13th day of May 2026
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( Gladys 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 the applicant’s 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: 13/05/2026
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: 13/05/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16889/20/4/55/B2143
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 4/20 (formerly RBCZ 10920/19) (T2S4)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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