KABIR MD HUMAYUN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1256/2025

[2025] HKCFI 5599

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1256 OF 2025

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”, “Director of Immigration” be added as the putative interested party and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 16 October 2024”. 

2.  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 2 June 2025, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of “The Notice of Decision dated 16^th October 2024” without identifying the decision-maker.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 16 October 2024 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 25 June 2024 (“the Director’s Decision”).

3.  It is clear that the date of the decision that the applicant put in Form 86 is the date of the Board’s Decision, and hence the Leave Application should be in respect of the Board’s Decision.  The applicant also confirmed at the oral hearing before this court on 16 September 2025 that the Board’s Decision was the subject matter of the Leave Application.  The Board’s Decision can be viewed in the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001256_2025_files/the_Board's_Decision.pdf

4.  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 dismissed the applicant’s appeal/petition and affirmed the Director’ Decision, which rejected his non-refoulement claim.

Amendments

5.  The applicant named both the Director and “The Adjudicator of the Non-refoulement Claims Petition office appointed to determine the Applicant’s Petition” as the putative respondents but did not name any putative interested party in Form 86.

6.  In fact, only the Board should be the putative respondent and the Director should be the putative interested party.

7.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board, and should not be named as a putative respondent at all.

8.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision.

9.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, to add “Director of Immigration” as the putative interested party and to amend the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 16 October 2024”.

Late application

10.  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.

11.  However, the applicant filed Form 86 on 2 June 2025, which was more than 7 months after the Board’s Decision (made on 16 October 2024).  The applicant was hence late for more than 4 months in making the Leave Application.

12.  This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which 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.

13.  The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application.  At the oral hearing before this court on 16 September 2025, the applicant said that he was in prison at the material time.  The reason for the delay was that he did not receive the Board’s Decision until he asked for it.  He filed the Leave Application only 15 days after he received the Board’s Decision.

14.  The delay of more than 4 months is substantial. This court notes that it might be difficult for the applicant to file the Leave Application in time when he was not even aware that the Board had determined his claim.  However, 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, even if an application for extension of time was made.  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 face risk of serious harm as he had been persecuted by members of the Awami League (“AL”), which was the ruling political party of Bangladesh.

Oral hearing

19.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 16 September 2025.

20.  When this court asked the applicant for the grounds of his intended judicial review, he merely asked this court to give him more time to get some documents from Bangladesh.

21.  The applicant told this court that he had engaged a private lawyer to file the Leave Application for him.  However, when this court pointed out that that was contradictory to what was stated in his supporting affirmation dated 2 June 2025, namely that he was unrepresented and did not have access to any legal advice, the applicant replied that he could not read.  He had no idea about what was written in the affirmation and no one explained it to him.

22.  When this court invited him to state his own grounds, he just said that he had political problem in his country and repeated his claims about the threat of being killed and the bully incident which he allegedly had encountered.  Although the applicant admitted that all these matters had been presented to the Board for consideration, he said that he did not provide any documents to the Board.  He therefore asked this court repeatedly to give him time to submit documents. 

23.  However, as explained to the applicant by this court at the hearing, it is not for this court to receive new evidence in a judicial review (see Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090).  Thus, the applicant’s request for more time was not granted by this court.

Grounds for judicial review

24.  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).

25.  The applicant did not assert any grounds for his intended judicial review in Form 86.  In his supporting affirmation dated 2 June 2025, he stated that (1) he was unrepresented and did not have access to any legal advice; (2) his family had received fresh threats in Bangladesh after his departure, his enemy had not let this matter fade away and were bent upon harming him in any way possible to make an example out of him; and (3) he was informed that the Director and the Adjudicator did not see the grounds to reverse their decisions.

26.  As mentioned, the applicant admitted that he did not know what were written in the affirmation and no one had explained the contents of it to him.  Thus, the grounds stated therein could not be genuine grounds asserted by the applicant.

27.  When this court asked him for his own grounds for the intended judicial review, he just said that he had further documents to produce and asked this court to give him time to submit evidence.

Discussion

28.  First of all, as explained to the applicant at the oral hearing, if he intended to submit new evidence to this court for consideration of his non-refoulement claim, it was not permissible.  The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board, supra, that 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 materials not placed before the Board as a ground for his intended judicial review, and there is no reason for this court to give him time to submit more evidence.

31.  The grounds that were advanced in the applicant’s affirmation, of which he admitted that he had no knowledge, can simply be disregarded as they were not his genuine grounds.

32.  In any event, the complaint of the lack of legal advice cannot assist him.  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.

33.  Secondly, the applicant’s alleged dangerous situation had all been duly assessed by the Board.  If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.

34.  The last allegation that the Director and the Adjudicator did not see the grounds to reverse their decisions was without any particulars.  The applicant did not state how the Director or the Board did not see any grounds to reverse their decisions.  Thus, it could not be a ground for his intended judicial review.

35.  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, supra).

36.  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.

37.  In assessing the appeal by the applicant, the Board arranged an oral hearing on 26 September 2024 but the applicant was absent.  Thus, the applicant was offered the opportunity to present his case to the Board in person, but he chose not to do so.  He did not submit any written request with explanation of his absence to the Board for consideration to fix another hearing date either.  The Board was satisfied that the notice of hearing was duly served and proceeded to determine the applicant’s appeal/petition based on all the evidence before it.

38.  Having considered all the evidence, the Board found the applicant’s account not credible and rejected his account as untruthful.

39.  The Board further found no documentary or objective evidence to support the applicant’s material assertions, namely that (1) he had been an Imam since 2009; (2) he had been associated with Jamaat; and (3) he had been persecuted by his enemies due to his political affiliation.

40.  Significantly, the Board noted that it was the applicant’s own evidence that he was not a member but just a volunteer worker of Jamaat and that he had never been physically assaulted by his enemies or AL members.  The Board did not accept that (1) he had been persecuted due to a Convention reason; (2) he had been threatened as alleged or that there was a real risk that he would be ill-treated or at risk of arbitrary deprivation of life if returned to Bangladesh; and (3) there was active or passive state acquiescence to the acts of his enemies.  There was also no evidence that any acts of torture had inflicted on the applicant pain or suffering of certain severity or gravity.

41.  Moreover, the Board found that reasonably sufficient state protection was available to the applicant in Bangladesh.

42.  Based on the findings as summarised above, the Board considered that it was not necessary to make findings on internal relocation for the applicant.  Nevertheless, if it were necessary to consider the issue of internal relocation, the Board would consider that it would be reasonable and not unduly harsh for the applicant to reside and work anywhere within Bangladesh, especially Dhaka, Chittagong and Khulna, to lower his perceived risk.

43.  Thus, the Board concluded that the applicant had failed to substantiate a case for non-refoulement protection on any of the applicable grounds under the USM.

44.  The assessment of evidence, country of origin information 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.

45.  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. 

46.  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

47.  For reasons aforesaid, 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