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HCAL 1476/2021
[2026] HKCFI 3244
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1476 OF 2021
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BETWEEN
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Regan Md |
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 name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.
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 22 October 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 October 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/HCAL001476_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 26 April 2021 and confirmed the same, which rejected the applicant’s non-refoulement claim.
Amendments
3. The applicant named the Board and the Director as both as the putative respondents and the putative interested parties in Form 86, and spelt the Board’s name wrong.
4. In fact, only the Board should be named as the putative respondent and only the Director should be named as the putative interested party.
5. Thus, this court 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”.
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 harmed or killed by Ariful Islam Rabbi (“AIR”), the president of the student wing of Awami League (“AL”) of Sreenagar Government College, and his people due to political dispute. The applicant claimed to be a supporter and was selected as the joint general secretary of the Bangladesh Nationalist Party (“BNP”) of his district.
Oral hearing
8. The applicant requested for an oral hearing of the Leave Application and his case was heard on 28 May 2026.
9. When this court asked the applicant to elaborate on the grounds of his intended judicial review which were stated in a handwritten letter annexed to his supporting affirmation dated 22 October 2021, he merely reiterated the political problem he had in his country and added that he could not return to his country due to his bank loan. He also admitted that he could not identify anything wrong with the Board’s Decision but just wanted to ask this court to reconsider his case.
Grounds for judicial review
10. 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).
11. The applicant did not advance any ground for his intended judicial review in Form 86.
12. In the said letter which was annexed to his supporting affirmation, he mentioned 3 matters, which are summarised as follows:-
(1) His life would still be in danger if he returned to Bangladesh;
(2) The political situation in his country – the country was like a one-ruler country, people did not have freedom of speech, all sectors of government were corrupt, and even the police were with the government and not the people;
(3) Covid-19 pandemic was serious in Bangladesh and there were not enough vaccines there.
13. As aforesaid, the applicant did not elaborate on any of the above grounds at the oral hearing before this court. He only reiterated that there was political problem and added that he could not return to his country due to his bank loan.
Discussion
14. First of all, the applicant’s danger in his home country had been duly assessed 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.
15. His fear of return to Bangladesh due to the general political situation, the Covid-19 pandemic and his bank loan were not presented before the Board for assessment.
16. The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 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.
17. In any event, the Covid-19 pandemic is over and is no longer an issue.
18. 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).
19. 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.
20. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 30 August 2021. The applicant was present and was given the chance to present his case to the Board in person.
21. As can be seen from the Board’s Decision, the Board found that nothing would happen to the applicant until there was an election which took place every four years. Furthermore, the threats and attacks were election-related and they were generalised threats and attacks against BNP people, rather than specific threats and attacks against the applicant himself. The Board found it clear that AL people did not target the applicant specifically.
22. The Board found that the attack on the applicant sometime in March 2014 was due to a personal dispute between the applicant and the sister of AIR. It had nothing to do with the political difference between the applicant and AIR.
23. The Board also found that despite the applicant’s claim that AIR and his men threatened to kill him almost every day, it was clear that those were empty threats because AIR did not carry out the threat at all. There was an occasion where the applicant described AIR as having a pistol and pointed the pistol at his head. However, AIR’s men only beat the applicant with wooden sticks.
24. As to the injuries the applicant sustained in the past, the Board found that the most serious one was in 2019 which took the applicant two months to fully recover. In any event, the injuries inflicted left the applicant no permanent disability at all and they were all superficial injuries.
25. The applicant claimed that the police sided with the AL people and did nothing to his complaints against the AL people. The Board found from country of origin information (“COI”) that although corruption and abuse of power had been and continued to be major problems affecting the police in Bangladesh, the Bangladeshi government had taken steps to improve the performance of the police and to make it easier for the public to report corruption and lack of service.
26. Moreover, the Board had laid out in paragraphs 83 to 88 of the Board’s Decision its full reasons in finding that internal relocation was a viable option to the applicant to avoid AIR and his men.
27. Thus, the Board rejected the applicant’s claim for non-refoulement protection on all the applicable grounds under the USM.
28. The finding of facts, including the assessment of evidence, COI 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.
29. 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.
30. 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
31. For reasons aforesaid, the Leave Application is dismissed.
Dated the 3rd day of June 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: 03/06/2026
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: 03/06/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 17920/21/5/33/B2242
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 159/21 (Formerly RBCZ/10105/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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