ISLAM SHAHIDUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 66/2023

[2026] HKCFI 3052

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 66 of 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 17 January 2023 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 2 December 2022 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 22 April 2021 (the “Notice”), refusing his application for non‑refoulement protection.

2.  The leave application was heard on 25 March and 27 April 2026. While exploring the grounds of application with him during the first hearing, the Applicant claimed he was not feeling well.  Hence, the first hearing on 25 March 2026 was adjourned part-heard to 27 April 2026.

The Applicant’s claim

3.  The Applicant is a Bangladeshi national, now aged 38.  He surrendered to the Immigration Department on 2 March 2020 claiming to have sneaked into Hong Kong from Mainland China on 24 January 2020.  On 22 June 2020, he lodged a claim for non-refoulement protection.  His claim was assessed on all four applicable grounds and rejected by the Director’s Notice.  His appeal against the Notice was dismissed by the Board’s Decision.  He now seeks leave to apply for judicial review of that Decision.

4.  His personal background, the factual background leading to the present application, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, he claims, if returned to Bangladesh, he will be harmed or killed by the President of the Student Wing of Sonagaji (“his enemy”) of the Awami League (the “AL”) because of his support for the rival Bangladesh Nationalist Party (the “BNP”).

5.  His case as advanced by him in his non-refoulement claim form (“NCF”) and record of screening interview (“ROI”) is as follows.  He joined the BNP in 2013 and became the Joint General Secretary of the Youth Wing of Ward No 4 Nabapur Union.  One day in about 2015/2016, he received a call from his enemy warning him not to attend a BNP party meeting.  He ignored that warning and attended the meeting.  On the following day, he was attacked by two to three people (the “first attack”).  After the first attack, his enemy warned him not to stay in the area or he would be killed.  The Applicant reported the threat to the police but to no avail.  He went to hide in different places for three to four years and worked as a motor mechanic.  He returned to his home village in 2019.  One day, he was attacked by four to five men and injured (the “second attack”).  He did not report the attack to the police because of his previous bad experience.  About a month later, he was told by his sister that his father was assaulted and that they had made a report to the police but no action was taken.  Then, he fled to China and from there he sneaked into Hong Kong.

The Board’s finding

6.  The Board found the Applicant’s account internally inconsistent, vague and unsupported.  In his NCF and ROI, he gave different accounts of the first attack as to when and where the attack took place and what happened during the attack.  He said he was warned by his enemy not to attend the meeting of the BNP, but he never gave details about the meeting, such as who attended the meeting, the venue of the meeting, whether it was a routine meeting or what was discussed at the meeting.  At the hearing before the Board, he gave particulars.  He said it was an ad hoc district-wide special meeting held at the BNP Feni District headquarters to discuss strategy of the upcoming parliamentary election and attended by a member of the parliament called ‘B.P.Jainal’.  But the problem of his evidence is that there was no upcoming parliamentary election and no incumbent BNP member of parliament in 2015/2016 because the BNP boycotted the 2014 election and the Board could not find the name ‘B.P.Jainal’ as a previous member of parliament in Feni District.

7.  His testimony before the Board created more discrepancies. Contrary to his evidence in his NCF, he told the Board that he was assaulted by four to five assailants during the first attack and he could identify them all.  Again, contrary to his evidence in his NCF and ROI, he said that during the three or four years when he went into hiding after the first attack, his could not work because his left arm was in a sling for about a year and after that he had psychological problem.  He said his mother had to sell her jewellery and his family had to sell the family land to pay his hospital expenses and to support him during his recovery.  When confronted with the discrepancies, he put the blame on his head injury.

8.  He claimed he had scars on his upper arms, leg, head, ear and stomach as a result of the attacks.  He produced three photographs taken by the Duty Lawyer Service (“DLS”) showing scars on his upper arms and leg.  As for the other scars, he said he had asked the DLS to take photographs of them, but the DLS did not.  The Board found it difficult to see why the DLS would omit to do so if those scars were visible.

9.  The Board also found for a person who claimed to have got into trouble because of politics, his knowledge of politics in his country was deficient.

10.  Having carefully tested the Applicant’s account against common sense and internal consistency and looked at the evidence as a whole, the Board had no hesitation in rejecting it.  It did not accept that the Applicant had ever been threatened or assaulted or that he came to Hong Kong due to a fear for his life and safety.  It found the Applicant had failed to prove the primary facts to support any of the applicable grounds.

11.  However, the Board went further and assessed the Applicant’s claim on the basis of the case as he asserted.  Even assuming the injuries allegedly suffered by him were true, the Board found they were not grievous and there is no lasting disability.  Though he claimed at the hearing that he had many problems, he never sought treatment in Bangladesh or in Hong Kong.  The Board considered the past injuries came nowhere near attaining a minimum level of severity.  As the Applicant said he no longer wishes to participate in BNP activities on his return to Bangladesh, the Board did not accept he had proved a real risk of serious harm on his return.

12.  On the basis of authoritative and credible country of origin information (“COI”), the Board considered there was nothing in the personal circumstances of the Applicant which would make state protection unavailable or inaccessible to him.  Likewise, it found it would not be unduly harsh or unsafe for the Applicant to relocate to another part of his home country to avoid the feared risk of harm. 

13.  Applying the law applicable to non-refoulement protection to the facts it found, the Board came to the conclusion that the Applicant is not entitled to protection under any of the applicable grounds under the USM.  Hence, it dismissed his appeal.

Legal principles applicable to judicial review

14.  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[2].

Grounds for judicial review

15.  At the hearing, after the legal principles in the preceding section were explained to him, the Applicant confirmed he had no complaint about errors of law, procedural unfairness or irrationality in the Decision and left it to the Court to look for such vitiating elements for him. However, he had advanced the following grounds of application in his Form 86:

(1)   an appeal before the Board should be conducted by way of a rehearing;

(2)   the Decision is unreasonable or irrational in the public law sense and is the result of procedural errors or unfairness;

(3)   the Board unlawfully fettered its discretion by dismissing his appeal on the grounds that it did not meet the requirements;

(4)   the Board failed to meet the greater duty of care owed to an unrepresented claimant;

(5)   the Board acted in a procedurally unfair manner in dealing with the Applicant;

(6)   it is the Applicant’s fundamental human right not to be subjected to torture;

(7)   the Board did not interact with the Applicant’s claim, did not conducted any analysis of the supporting documents and did not turn its mind to the risk of violation of his right to life under BOR 2;

(8)   the Applicant will face hardship if returned to his home country and the Board has relied on source of news which is not officially recognized;

(9)   the Board should treat each appeal as a de novo hearing;

(10)   the Board relied on some outdated cases which resulted in its making groundless speculations; and

(11)   despite the Applicant’s problems in his home country are very severe and that he had already submitted all the documents, the Board was not caring and made the Applicant disappointed.

The Applicant’s grounds are not entirely comprehensible.  Some of the grounds are just legal principles containing no substantial complaints.  Some of the grounds are lacking in particulars.  When asked for elaboration, his responses are largely irrelevant.

16.  Ground (1):   This ground is a statement of legal principle with no pleading of breach of the principle.  On the face of the Decision, an oral hearing had been held, the Applicant testified and responded to questions put to him by the Board, a decision was made and reasons for the decision were given.  There is nothing to suggest that the appeal was held otherwise than by way of a hearing de novo.

17.  Ground (2):   This ground is lacking in particulars.  In answer to the Court’s request for particulars, the Applicant said he would leave it to the Court to examine the Decision for errors of law, procedural unfairness and irrationality in the Decision.

18.  Ground (3):   This ground is lacking in particulars as to what were the requirements which the Applicant claimed he had met but the Board falsely or unfairly found she had not. These particulars are required to prove that the discretion should have been exercised otherwise.  When asked for particulars, the Applicant replied that he had nothing to say.

19.  Ground (4):   This ground is lacking in particulars as to what were the contents of this ‘greater duty of care’ owed to the Applicant as an unrepresented claimant and evidence of the Board’s breach.  He said this ground was written by his friend, he understood it then but not now.  At this point, the Court stood the hearing down for all the grounds of his application to be interpreted to him by the court interpreter.  At the resumed hearing, the Applicant withdrew this ground of application.

20.  Ground (5):    The Applicant was unable to provide particulars of the unfair manner displayed by the Board and left it to the Court to make its own finding.  At this point, he said he was not well and asked for an adjournment. The hearing was then adjourned to 10 am on 27 April 2026.  At the adjourned hearing, the Applicant confirmed that he had nothing else to say in respect of this ground.

21.  Ground (6):   This is just a statement of principle with no complaint of any impropriety.  When asked to elaborate, the Applicant said Bangladesh has a lot of problems and people went missing.  This is just a bare assertion not supported by any evidence or COI.  Even if it were true, there is nothing to suggest that the Applicant is personally at risk.  This ground is lacking in particulars.

22.  Ground (7):   The Applicant admitted that he was unable to provide particulars of the Board’s failure to interact with his evidence or claim.  A reading of the Decision shows clear indication of the Board reacting to the Applicant’s claims.

23.  Ground (8):   The Applicant could not give particulars of the source of news which he claimed was not officially recognized.  Having rigorously examined the Decision, the Court is satisfied that the COI considered by the Board are all from authoritative, credible and independent source.  There is no substance in this ground.

24.  Ground (9):   This ground repeats Ground (1) above. The Applicant’s response to the Court’s request for particulars is that he had nothing to say.

25.  Ground (10):   The Applicant could not identify the cases which he claimed are outdated.  Having read the Decision, the Court could not find any case quoted by the Board which had been overruled.

26.  Ground (11):   This ground is more of an expression of the Applicant’s sentiment than a particularised complaint of the Board’s error.  The Applicant’s response to the Court’s request for particulars is that he had nothing to say.  The Court would bear this ground in mind in its overall scrutiny of the Board’s Decision.’

27.  None of these grounds is a valid ground of application.

Overall scrutiny

28.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

29.  The Board analysed the evidence carefully and tested it against common sense, inherent probability and the COI.  It found the Applicant’s evidence unreliable and rejected it in its entirety.  The Board’s primary finding is that he had failed to prove the basic facts to support any of the four applicable grounds for protection under the USM.

30.  The Board then took a step further and assessed the Applicant’s case on the basis of the account as he asserted.  It made some further finding of fact on the basis of his evidence, the inferences to be drawn from the evidence and the COI.  It gave full reasons for its finding. On the evidence, it was open to the Board to make the findings as it did.  Applying the law applicable to non-refoulement protection to the facts it found, the Board came to the conclusion that the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds under the USM.  This is the Board’s secondary finding.

31.  The Board’s primary finding and secondary finding are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court in a judicial review will not interfere, save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational.  The Board’s findings are un-reproachable.  Basically, the Applicant failed to discharge his burden of proving his entitlement to protection.  The proposed judicial review has no realistic prospect of success.

Conclusion

32.  For the above reasons, the Applicant’s leave application is refused.

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