AHMED MD NABEL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

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

Following:

1.   The Form 86 be amended on the court’s own motion.

2.   There shall be no extension of time for the applicant to file the application for leave to apply for judicial review out of time.

3.   The applicant’s application for leave to apply for judicial review be dismissed.     

Introduction

1.   By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 21 July 2025, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 16 September 2024 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 24 May 2024 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds[1].  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001635_2025_files/the_Board's_Decision.pdf

2.   In the Form 86, the applicant named the Board and the Director as the proposed respondent as well as interested parties. As the Board should have been the proper respondent and the Director the interested party, the Form 86 will be amended accordingly on the court’s own motion.

3.   The basis of the applicant’s claim was that, if refouled to Bangladesh, he would be harmed or killed by (i) the Awami League (“AL”) due to his refusal to accede to the AL’s demand to quit the Bangladesh Nationalist Party (“BNP”); (ii) by police for having accidentally killed his neighbour’s dog as has arrested; and (iii) his uncle over a land dispute. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 20 January 2026.  The applicant appeared in person.  After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

5.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit.    The Form 86 provided no such grounds. In his supporting affirmation, the applicant put forth grounds in support of the Leave Application and explained the delay for the filing of the Form 86.  Insofar as the grounds are concerned, the applicant averred that the Board had misapplied the test for internal relocation in that his family, especially his father, were still subject to attacks while he was in Hong Kong. He further averred that his parents were recently kidnapped and he had lost contact with them as a result.  Gang members were occupying all of his family’s land.  Lastly, he averred that without an oral hearing, the Board would not have been capable of resolving factual disputes on paper.

7.  At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application. In view of the applicant’s allegation about the absence of an oral hearing before the Board, I asked the applicant to elaborate.  He stated that at the time of the hearing before the Board, he was serving prison sentence and was therefore unable to submit any documents. During the remote hearing by video, he had told the Board that he had documents in the High Court. He said he could not return home, as there were still lots of trouble in his country. He stated that there was a pending murder case made against him around August 2023, of which he informed the Board.  However, the Board only told him that it would further discuss with him later.

8.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[4]  In the present case, as the applicant was remanded in Pik Uk Correctional Institution at the scheduled hearing before the Board, arrangements had been made for the hearing to be conducted via the “Remote Official Visiting System”. When assessing the veracity of the applicant’s evidence, the Board found that his evidence contained lots of inconsistencies and was irrational and illogical. The Board found that his evidence was not true. Even if the the Board were to accept the truthfulness of the applicant’s evidence, the Board found that due to the recently political changes in Bangladesh when the AL were no longer in power, any threats from them would have dissipated. Further, the past ill-treatments from either the AL, the police or the uncle did not reach the minimum level of severity.  It further found that internal relocation was reasonably available.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

9.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. Regarding the applicant’s alleged events allegedly happened to his family, it is not the role of the court to assess the events that happened after the Board’s Decision. I also find that his complaint of the lack of oral hearing not valid.  In [20] of the Board’s Decision, the Board took great care in ensuring that the applicant had opportunity to provide and supplement his evidence.  According to the Board’s Decision, there was no evidence that the applicant had requested to be given time to provide supporting documents. The applicant’s ground on internal relocation was vague and did not condescend to particulars. The applicant’s allegation at the hearing that the Board had alleged told him that it would further discuss with him about the murder case against him in 2023 is a bare allegation.  According to [20] of the Board’s Decision, at the conclusion of the hearing, the Board had asked the applicant if he had anything further to add and he had replied that he had nothing further to add. In the circumstances, after having considered his written grounds as well as his submissions at the hearing, I am not satisfied that the applicant has shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5].

Whether to extend time for the late application

10.  Another matter I need to consider is the delay. Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date when the Board’s Decision was delivered. The applicant was late for more than 7 months.

11.  At the hearing, the court asked him whether he wished to further elaborate on the written reason he had provided for the delay. The applicant also attributed the delay to his detention. He stated that from 21 July 2024 to 22 May 2025, he was serving prison sentence.  Afterwards, he was transferred to the Immigration’s detention facilities until 8 August 2025.  He said that while he was in detention, the officers there did not help him as he could not speak English.  It was only when he found some Pakistani inmates to help him could he then file the Leave Application.

12.  A delay of 7 months is lengthy. Whilst I accept the possible difficulties the applicant might have encountered while he was in detention, I do not find his explanation of having not able to find help while he was serving prison sentence as good reason. These, coupled with the lack of good prospects of success in his intended challenge, I refuse to exercise my discretion to allow an extension of time for the applicant to file the Leave Application.

Orders

13.  The Form 86 be amended on the court’s own motion.

14.  There shall be no extension of time for the applicant to file the application for leave to apply for judicial review out of time.

15.  The applicant’s application for leave to apply for judicial review be dismissed.

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