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HCAL 1443/2025
[2025] HKCFI 6169
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1443 OF 2025
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BETWEEN
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Sardar Apu alias Sordar Opu |
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. On this court’s own motion, the applicant’s name be amended to “Sardar Apu alias Sordar Opu” and “Director of Immigration” be added as the putative interested party.
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 16 June 2025 and filed on 23 June 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 20 May 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/HCAL001443_2025_files/the_Board's_Decision.pdf
2. The Board found that the applicant had failed to establish his claim for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected and dismissed the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 5 February 2025 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.
Amendments
3. The applicant named himself as “Apu Sardar” in Form 86 when his full name should be “Sardar Apu alias Sordar Opu”.
4. The applicant did not name any putative interested party in Form 86, when the Director should be so named.
5. Thus, on this court’s own motion, the applicant’s name is amended to “Sardar Apu alias Sordar Opu” and “Director of Immigration” is added as the putative interested party.
The applicant’s case
6. 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.
7. In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, he would be ill-treated or even killed by university students involved in agitation against the Awami League (“AL”) regime, the members of Bangladesh Nationalist Party and the members of Bangladesh Jamaat-e-Islami (collectively “the Enemies”), due to his leading role in Chhatra League, the student wing of AL.
Oral hearing
8. The applicant requested for an oral hearing of the Leave Application and his case was heard on 13 November 2025.
9. When invited by this court to elaborate on the grounds that he advanced by way of his affirmation dated 16 June 2025, the applicant repeated some of the factual basis of his claims, but he confirmed that all these matters had been presented to the Board.
10. However, the applicant said that he had a new problem, ie he had a land dispute and a fight with his uncle during which his uncle was hurt at his head. His uncle threatened to kill him if he returned. The applicant claimed that this dispute happened about one month before the student protest in Bangladesh in 2024. When this court asked him if he had presented this matter to the Board, he first replied that he did mention it, but he later changed to say that he could not recall if he did.
Grounds for judicial review
11. 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).
12. The applicant advanced a few matters in his supporting affirmation dated 16 June 2025, which are summarised as follows:-
(1) He is a genuine non-refoulement claimant who faced all these dangerous problems, harassment and torture in his country;
(2) The Director reached the wrong decision and rejected his claim without carefully understanding his situation; and
(3) If he did not run away, he would certainly be killed.
13. The contents as stated above were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Director’s or the Board’s decisions. It seems that the applicant had used them without any regard to his own situation. Nevertheless, as the applicant is relying on the above grounds to make the Leave Application, this court will still deal with the grounds as discussed below.
14. As mentioned, the applicant told this court that he had a land dispute with his uncle where the uncle threatened to kill him. This happened before the student protest in Bangladesh, which was the incident that formed the basis of his non-refoulement claim.
Discussion
15. First of all, if the applicant intends to submit new claims or evidence to this court for consideration of his non-refoulement claim, it is 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.
16. 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.
17. Thus, the applicant cannot rely on any matters not presented to the Board for consideration to challenge the Board’s Decision.
18. As can be seen in paragraph 35 of the Board’s Decision, the applicant had confirmed to the Board at the Board’s hearing on 14 April 2025 that he had no other reasons that he could not be returned to Bangladesh other than that stated in his claim made by way of a written signification dated 3 November 2024. It is clear that he did not mention the dispute with his uncle to the Board. If he did, there was no reason for the Board not to mention this dispute in the Board’s Decision at all.
19. Thus, there is no reason for this court to consider the applicant’s alleged dispute with his uncle at this stage.
20. The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.
21. Thus, the general assertions put forward by the applicant in his supporting affirmation, which merely contained “key words” that he was facing “dangerous problems, harassment and torture”, or that the Director’s Decision was wrong, etc, cannot help the applicant at all.
22. His alleged dangers in his country had been duly assessed by the Board. If he intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.
23. Moreover, the Director’s Decision was superseded by the Board’s Decision and was no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). The applicant’s complaint against the Director can be simply ignored without further discussion.
24. In the premises, this court finds that none of the grounds asserted by the applicant constitutes a valid ground to challenge the Board’s Decision.
25. 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).
26. This court will therefore 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.
27. In assessing the appeal by the applicant, the Board held an oral hearing on 14 April 2025. The applicant was present and was given the chance to present his case to the Board in person.
28. As can be seen from paragraphs 47 to 59 of the Board’s Decision, the Board found a part of the applicant’s evidence, which went to the core of his claim, was characterized by material inconsistencies and unreasonableness, which severely undermined the general credibility of the applicant. The Board did not accept that the applicant had forgotten or confused with material details of his case, which went to the core of his claim, in a short period of time, bearing in mind that the time gap between the screening interview and the Board’s hearing was only about 2 months.
29. Thus, on the totality of the evidence, the Board was not persuaded that the applicant was giving a truthful or reliable account of past events in respect of the threats from the Enemies, and that the applicant was attacked and threatened by the Enemies.
30. The Board further found that even the applicant’s account was accepted, he would not be entitled to non-refoulement protection in Hong Kong on all the applicable grounds under the USM. The Board considered that the applicant’s alleged injuries were not serious and there was no indication suggesting that the Enemies intended to inflict severe harm or fatal attack on the applicant on purpose.
31. Even assuming that the Enemies did have real intention to harm or kill the applicant, there was no substantial ground to believe that the Enemies had the ability and resources to track him down everywhere in Bangladesh. There was no involvement of the state in the attacks, as the Enemies were the political rivalry of the AL regime.
32. After considering the evidence of the applicant and extensive country of origin information (“COI”), the Board found that state protection would be available to the applicant if he encountered difficulties after returning to Bangladesh.
33. Moreover, the Board considered that the applicant, being an able-bodied adult with eight years of education and six years of work experience, should be able to relocate to areas other than the area of his home village in Bangladesh to avoid his feared risk of harm and to earn a living.
34. In its assessment of the applicant’s risk on all the applicable grounds under the USM, the Board found that the ill-treatment on the applicant was not for any Convention reasons, nor was it acquiesced by the state of Bangladesh. The applicant failed to establish that he was at a real or genuine risk of being subjected to torture, ill-treatment, arbitrary deprivation of life or persecution. Thus, the Board rejected the applicant’s claim and his appeal/petition.
35. The assessment of evidence, COI 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.
36. 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.
37. 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
38. For reasons aforesaid, the Leave Application is dismissed.
Dated the 17th day of December 2025
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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: 17 December 2025
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:
17 December 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 25650
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 64/25
(formerly RBCZ 5002787/24)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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