KAZUL, MOHAMMED ASADUZZAMAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 371/2020

[2025] HKCFI 5195

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 371 OF 2020

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 the applicant being absent 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 11 March 2020, 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 15 January 2020 (“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/2020/HCAL000371_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had not established his claims for non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 13 December 2018 (“the Director’s Decision”), 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 feared harm from a man named Rakib and people from the Awami League (“AL”) as he was an active member of the Bangladesh Nationalist Party (“BNP”).

5.  He also feared harm from his wife’s uncle, who threatened to chop and kill him if he returned to Bangladesh, because he has a baby with a woman in Hong Kong.

Oral hearing

6.  The applicant requested for an oral hearing of the Leave Application. However, he was absent at the hearing on 15 August 2025.

7.  As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

8.  Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Grounds for judicial review

9.  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).

10.  However, the applicant did not assert any grounds for his intended judicial review in Form 86, nor in his supporting affirmation dated 11 March 2020. He merely stated in the affirmation that the Leave Application was to apply for judicial review against the decision of the Board as well as the Director.

Discussion

11.  First of all, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). Thus, the Director’s Decision cannot be the subject matter of the Leave Application.

12.  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).

13.  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.

14.  In assessing the appeal by the applicant, the Board arranged an oral hearing on 18 September 2019 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person.

15.  The Board noted that the applicant was unable to recall the claims he made in his written statements, let alone provide further details about those claims. Although the applicant claimed to be an active member or supporter of BNP, he was unable to articulate any of the policies of the party or even explain why he supported them. Other inconsistencies of the applicant’s claims about the incidents during the 2014 election campaign and the BNP blockage campaign were laid out in paragraphs 38-39 of the Board’s Decision.

16.  Having considered all the evidence, the Board did not accept that the applicant’s claims to have been an active member of BNP and to have been targeted by AL because of his activities for BNP were credible.

17.  As to the threat from his former wife’s uncle, the Board also noted the inconsistencies in the applicant’s claim. The applicant was inconsistent with how the threat was posed. He told the Board that the uncle went to his family’s house and threatened his family, saying that if the applicant went back to Bangladesh, he would find him as he betrayed his niece. The applicant, however, said in his written statement that this uncle had phoned him and threatened him directly. When being challenged, the applicant said that the threat had been made over the phone to his family. When the Board put to him that he had just given evidence that the man had gone to his family’s home, the applicant replied “I just blurted this out, he actually phoned my family, it was just a slip of the tongue”. In any event, the applicant was divorced from his former wife and was married in Hong Kong.

18.  Based on the above findings, the Board was satisfied that the applicant had not established any basis for a finding that he faced a real risk that he would suffer serious harm at the hands of AL. The Board found that the applicant had not established that there were substantial grounds to support that he would face a real risk of ill-treatment as claimed if he returned to Bangladesh.

19.  The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it was not necessary for the Board to consider the availability of state protection.

20.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

21.  As it was the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it was not necessary for the Board to consider internal relocation.

22.  The assessment of evidence 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.

23.  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.

24.  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

25.  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