ALI JAHANGIR v. TORTURE CLAIMS APPEAL BOARD

HCAL 1457/2021

[2026] HKCFI 3245

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1457 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

1.  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 20 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 29 September 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/HCAL001457_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”). Hence, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 4 November 2020 and confirmed the same, which rejected the applicant’s non-refoulement claim.

The applicant’s case

3.  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.

4.  In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, he would be harmed or killed by members of Awami League (“AL”). The applicant also claimed that he was in fear of being harmed or killed by his creditor named Javed from whom he took out a loan of 3 million taka, as he was unable to repay the outstanding loan.

Oral hearing

5.  The applicant requested for an oral hearing of the Leave Application, and his case was heard on 28 May 2026.

6.  When this court asked the applicant for the grounds of his intended judicial review, the applicant merely said that he made the Leave Application because his problem in Bangladesh was not yet solved and he wanted to stay here. He added that the Board was wrong because it did not accept his application, but he had a loan problem and the interest accrued had increased to three times the original loan amount. He could not repay the loan and needed 3 to 4 months to move to another district in his country. He also said that he did not want to be detained and wanted to go outside before he returned to his country.

Grounds for judicial review

7.  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).

8.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 20 October 2021.

9.  What the applicant said at the oral hearing cannot amount to any valid ground for judicial review either. In fact, he was just repeating one of his reasons given for not being able to return to his country, ie his loan problem, that had already been presented to the Board.

Discussion

10.  First of all, the applicant’s danger arising from his unpaid loan had been duly assessed but rejected 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.

11.  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).

12.  Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

13.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 4 February 2021. The applicant was present at the hearing. Thus, the applicant did have a chance to present his case to the Board in person.

14.  As can be seen from the Board’s Decision, the Board found that the applicant had only made bare assertions much of which were based on hearsay upon hearsay and were unsupported by any admissible evidence whatsoever.

15.  The Board had laid out in paragraphs 47 to 58 of the Board’s Decision its findings on the credibility of the applicant and his case, and it is not necessary for this court to repeat the same here.

16.  In gist, the Board was satisfied that the applicant had deliberately exaggerated his position in the Bangladesh Nationalist Party and any ill-treatment on the part of AL. Moreover, the Board was satisfied that there was no credence to the applicant’s assertions with regard to the loan and his stated fear of Javed.

17.  In any event, the Board found that even if the applicant’s assertions in relation to facts within his own knowledge were assumed to be true, the applicant had at no time suffered any harm either from members of AL or from Javed and his men. Indeed, the applicant suffered no injuries of any description whatsoever, let alone injuries which reached a threshold of a degree of severity required to establish a claim for non-refoulement protection under the USM. The ill-treatment which the applicant claimed to have suffered, even if established, could not be categorized as having been inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official or anyone acting in an official capacity.

18.  Moreover, the Board found that internal relocation to Chittagong was a perfectly viable proposition for the applicant to alleviate any genuine fears he might have.

19.  Thus, the Board was not persuaded, even to the low standard required, that the applicant would be subjected to any ill-treatment if he were to be refouled to Bangladesh, and considered that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the USM.

20.  The finding of facts including 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 make its own decisions. The applicant’s alleged risks in his country had been fully considered but rejected by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decisions.

21.  For the sake of completeness, this court notes that the Board had stated the applicant’s case in both paragraphs 8 and 9 of the Board’s Decision. In fact, the applicant’s case was only correctly stated in paragraph 9, which mirrored the first three lines of paragraph 8.

22.  In the second part of paragraph 8, the Board stated that the applicant feared that he would be arrested and punished in relation to two false charges laid against him, one of which was a charge of murder. However, from the applicant’s Non-refoulement Claim Form as well as the record of interview with the immigration officer, it is clear that these false charges were not part of the applicant’s claim at all. The Board’s Decision did not contain any assessment in respect of the false charges either.

23.  Thus, the Board might have inadvertently included this paragraph in its decision.

24.  This court also notes that the Board had wrongly named Aslam, the applicant’s business partner, as the creditor in paragraph 53 of the Board’s Decision, when Javed should be the creditor. This is clearly an inadvertent mistake as the Board did name the creditor correctly in other paragraphs of the Board’s Decision.

25.  However, the unintentional mistakes as aforesaid would not nullify the Board’s Decision, as it had clearly canvassed all the applicant’s bases of claim for non-refoulement protection, ie his risks from AL and his creditor Javed.

26.  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’s Decision regarding the applicant’s case was not flawed.

27.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that 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

28.  For reasons aforesaid, the Leave Application is 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