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HCAL 344/2021
[2026] HKCFI 706
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 344 OF 2021
BETWEEN
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Khan Mohammad Shahadat Hossain |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative Respondent |
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and |
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Director of Immigration |
Putative 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. 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 15 March 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 28 January 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/HCAL000344_2021_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s appeal/petition against decision of the Director of Immigration (“the Director”) dated 19 May 2020 (“the Director’s Decision”) failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the Director’s Decision, which rejected the applicant’s claim for non-refoulement protection.
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 he claimed that he was a member of the Bangladesh Nationalist Party (“BNP”) and that if he returned to Bangladesh, he would be tortured and killed by members of Awami League (“AL”), which was the governing party in Bangladesh.
Oral hearing
5. The applicant requested for an oral hearing and his case was heard on 13 January 2026.
6. When this court asked the applicant for the grounds of his intended judicial review, the applicant merely asked this court to allow him to stay in Hong Kong for a few more months. The applicant claimed that he wanted to back to Bangladesh after the election, which would be held most likely in June this year, and he wanted to stay here for a follow-up medical appointment in September this year. The applicant also admitted that there was nothing wrong with the Board’s Decision.
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 15 March 2021. He merely stated in the affirmation that he would be killed by his enemy if he returned.
9. As aforesaid, the applicant did not advance any grounds for judicial review at the oral hearing on 13 January 2026. He in fact admitted that there was nothing wrong with the Board’s Decision and he only wanted to stay in Hong Kong for a few more months.
Discussion
10. First of all, the applicant’s danger had been fully assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a 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 the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.
13. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 10 September 2020 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person.
14. As can be seen from the Board’s Decision, the Board had analyzed the applicant’s evidence with due care. Although the Board did not find the applicant to be a credible witness, for the purpose of the decision on the applicant’s non-refoulement claim, the Board nevertheless accepted that for a period before he left Bangladesh, the applicant was a supporter and possibly an ordinary member of the BNP. For the same purpose, the Board further accepted that on some occasions before leaving the country, he was cut with a sharp implement, leaving scars. However, there was no credible evidence of how he was cut or of whether it was deliberate or accidental or of when the incident occurred.
15. The Board also found that the incident the applicant described occurred in 2016 and he went to Dhaka to stay with his in-laws for 15 days afterwards. He returned to his village until he left Bangladesh in January 2019. He did not claim that during that period he was physically harmed. The Board found no credible evidence that he would be at real risk of harm if he returned to Bangladesh.
16. The Board found that despite the 2016 incident, as a low-level member or supporter of BNP, there was no credible evidence that the applicant would be of any interest to the Bangladeshi authorities or to members of AL outside his immediate area. The attackers in the 2016 incidents were, in the applicant’s own evidence, only AL members and Hindus who came from his own area.
17. In view of its findings of fact, the Board concluded that the applicant had not established, even to the low level required that he would face a real risk of any of the proscribed forms of harm upon refoulement and returned to live in his home area. The Board also explicitly stated that if relocation had been necessary, the applicant could reasonably and safely move to Dhaka, where his parents-in-law and brother lived and where he had stayed before.
18. Thus, the Board concluded that the applicant’s claim for non-refoulement protection had failed on all the applicable grounds under the USM.
19. The finding of facts was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
20. 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.
21. 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
22. For reasons aforesaid, the Leave Application is dismissed.
Dated the 4thday of February 2026
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( Irene LEE ) |
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for Registrar, High Court |
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 his 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: 4 February 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: 4 February 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16965/20/5/54/B2155
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1160/19
(Formerly RBCZ/10896/19)
PSO
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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