Ah v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1561/2021 on BabelCite. This High Court CFI judgment was delivered on 15 April 2026.
1. By a “Notice of application to apply for leave to judicial review” in the prescribed Form 86 filed on 11 November 2021, 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 13 August 2021 (“ Board’s Decision ”) dismissing the applicant's appeal against a decision of the Director of Immigration (“ Director ”) da
Cites 13 cases
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HCAL 1561/2021 [2026] HKCFI 1977 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1561 of 2021
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord 53 r 3) Following:
Order by Deputy High Court Judge Levy:
Observations for the Applicant: A. Introduction 1.By a “Notice of application to apply for leave to judicial review” in the prescribed Form 86 filed on 11 November 2021, 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 13 August 2021 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 27 September 2018 (“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: - 2.The applicant was granted legal aid and later assigned counsel respectively on 3 June and 10 September 2025. On 6 January 2026, the court granted leave to the applicant to amend his Form 86. Before the hearing on 15 January 2026, the applicant had filed his amended Form 86 (“Amended Form 86”) and lodged hearing bundles (“HB”) together with the written submissions (“Skeleton”) and the list of authorities prepared by his assigned counsel, Mr Him Ho. 3.The applicant was a national of Bangladesh. He joined the Bangladesh Chhatra League (“BCL”), a student wing of Awami League (“AL”), in 1992 when he was still a student in a secondary school in Bangladesh. The basis of the applicant’s claim was that, if refouled, he would be harmed or killed by members of the rival Bangladesh Nationalist Party (“BNP”) (the then ruling party of Bangladesh) led by its local BNP leader, Shakku Bhai (“ Shakku”). 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 adopt the Board’s abbreviations and descriptions stated in the Board’s Decision. B. Applicant’s grounds of review 4.In the Amended Form 86, the applicant advanced the following grounds in support of the Leave Application. He averred that the Board:
5.Ground 1 is mainly in relation to the Board’s alleged error in its credibility finding. Grounds 2, 5 and 6 are about the Board’s alleged errors in its rejection of the applicant’s evidence concerning the 4 Incidents. Grounds 3 and 4 can be dealt with together as they are concerned with the Board’s assessment of the applicant’s future risk. For convenience, I will categorize the applicant’s 6 grounds into three groups respectively described as “Credibility Assessment”, “Rejection of the 4 Incidents” and “Future Risk Assessment” in the discussion below. However, there are 2 specific allegations that are common to all 3 categorized grounds - the Board’s adoption of standard of proof (a sub-ground of Ground 1) and its approach regarding hearsay evidence (Ground 6). C. Proper approach in leave application 6.It is trite that a 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 in respect of each of the above grounds after considering the Board’s Decision and the applicant’s materials adduced. D. Common Errors D.1 The Board adopted a wrong standard of proof 7.In the weighing of the applicant’s evidence in relation to his credibility, his membership of the BCL, the 4 Incidents, the past events and the future risk (see the same headings in the Board’s Decision at [85], [86], [88], [92], [96], [97], [103] and [104]), the Board stated that it was “not persuaded, on the balance of probability, …” before rejecting these aspects of evidence. 8.Mr Ho submitted that the standard of “balance of probabilities” which the Board applied is a higher civil standard, and it should only be adopted in private civil proceedings. Mr Ho further stated that the applicant, as a non-refoulement claimant, would undoubtedly have understandable difficulties in substantiating his case. Hence, Mr Ho suggested that the standard of proof in the present case should be lower than the usual civil standard of “balance of probabilities”. Instead, a lower standard of a “reasonable degree of likelihood” should be adopted: R v Secretary of State for the Home Department ex parte Sivakumaran [3] and R v Director of Immigration and Anor.[4] 9.This standard of “reasonable degree of likelihood” only requires a claimant to establish credibility by presenting a claim, which is capable of being believed. This lower standard of proof does not require a claimant to prove all the facts to a civil standard to convince the decision maker that all assertions are true. When there is an element of doubt on the part of the claimant’s story, the benefit of the doubt should be given: KZ v TCAB[5], Susanto Agus v TCAB [6] and Muhammad Shakeel v TCAB[7]. D.1.2 My view 10.It is noted that among the authorities submitted by Mr Ho, not all of them relate to the assessment of credibility in non-refoulement claims. The cases of R v Secretary of State for the Home Department (supra.) and R v Director of Immigration (supra.) on the lower standard of a “reasonable degree of likelihood” referred to the burden requiring a claimant to prove persecution risk upon refoulement. Hence, I do not think these cases apply to the correct standard for the assessment of credibility. 11.Deputy High Court Judge To in Susanto Agus (supra.) at [18] and Muhammad Shakeel (supra.) at [27] respectively alluded to the required standard of “one of low standard … not ordinary civil”; and “even less than the civil standard of balance of probability”. However, in the latter case, the learned Judge did not make any distinction between the credibility assessment and the proof of risk. 12.In my view, it is not helpful to label whether the usual civil standard of “balance of probability” or a lower standard is the proper standard in non-refoulement claims. I believe it is more instructive to apply the approach extensively stated in KZ v TCAB at [28]:-
Thus, when a decision-maker approaches a piece of hearsay evidence, he may not simply dismiss it by giving it little or no weight simply because it is hearsay or multiple or second hand hearsay. It is also well established law that to require corroboration in asylum cases is an error of law: see SS (Iran) v Secretary of State for the Home Department[8] . The decision maker should assess its credibility by testing it against the factors mentioned in sub-paragraph (1) above”. 13.I consider the the application of the above approach discussed in KZ v TCAB is more appropriate. D.2 Erroneous approach in attaching no weight to hearsay evidence: Ground 6 14.Under the heading of “Hearsay and Speculation” in the Board’s Decision at [98] to [101], the Board generally rejected the applicant’s hearsay evidence by not attaching any weight to hearsay evidence. It specifically rejected the applicant’s claim that he was told by his family members that BNP and Shakku had come to the family home looking for him as it was hearsay. It further stated that speculation could rarely support any aspect of the applicant’s claim (Board’s Decision [101]). 15.In M v TCAB[9] at [26], the Court of Appeal held that it was at least reasonably arguable that the Board in that case had taken an erroneous view that no weight should be attached to all hearsay evidence. In the present case, the Board had similarly used almost identical words as that of the Board in the case of M in its assessment of hearsay evidence at [98] to [101] of the Board’s Decision. 16.In non-refoulement claims, it is well-established that the benefit of the doubt should be applied in credibility assessments. By this principle, a decision-maker should accept an asserted material fact as credible even though there may be no evidence other than the claimant’s statements to support the fact. In the present case, the Board did not appear to have applied the principle of the benefit of the doubt when considering what weight to be attached to hearsay evidence. Instead, it simply rejected it outright merely because it was hearsay. In the circumstances, it is therefore reasonably arguable that the Board was wrong in attaching no weight at all to the applicant’s hearsay evidence. Since the Board’s rejection at [99] of the Board’s evidence would be relevant to the Board’s assessment of the applicant’s future risk of harm, it is therefore also reasonably arguable that the Board’s assessment of the applicant’s future risk of harm (see Sections G below) is tainted. E. Credibility Assessment: Ground 1 17.In [83], [84] and [85] of the Board’s Decision, under the heading of “Credibility of the Appellant”, the Board stated :
18.Mr Ho faulted the Board for having made an adverse general credibility finding on the foundation of the applicant’s use of a false passport. It was submitted that the Board should have considered the relevant factual assertions in assessing the applicant’s credibility: S v TCAB[10]. Mr Ho contended that the Board in the present case made a similar error as the adjudicator did in S v TCAB, who was held by the Court to have erroneously taken into account the appellant’s illegal entry to Hong Kong when assessing the latter’s persecution risk. The Court found at [38] that the adjudicator was wrong to have found the claimant dishonest and his story unreliable because of his record of illegal entry into Hong Kong. 19.It was submitted that the Board in the present case had fallen into error in its conclusion that that the applicant’s evidence was unreliable simply because of his past use of a false passport. Mr Ho suggested that had the Board made further inquiries, the applicant might have been able to give an innocent reason for the use of the false passport. E.1 My view 20.In its assessment of the credibility of the applicant in [83] to [85] of the Board’s Decision, the Board appeared to have only relied on the applicant’s previous use of the false passport as the foundation for his adverse finding on the applicant’s general credibility. After the Board had referred to the applicant’s explanation for the false passport (that it was obtained by the agent), it appeared to make its own assumptions that the applicant had ignored “the reality of the situation”. It further assumed that the applicant was aware that using the false passport was unlawful. It then arrived at the conclusion that the applicant was “fundamentally dishonest”. 21.The Board appeared to have failed to conduct the credibility assessment with a required structured approach by evaluating any internal consistency. Even if the Board might not believe the applicant’s explanation that the false passport was purely an arrangement by the agent, had the Board probed further, the applicant might have been found to have had other reasons for its use, such as to avoid attention. As held in the case of S v TCAB (supra.), a claimant’s previous illegal entry into Hong Kong should not be used as a foundation to make an adverse finding. In the present case, the Board seems to have fallen into similar error. It is therefore reasonably arguable that the Board’s adverse credibility assessment is not procedurally fair as it had relied predominantly on the applicant’s previous use of a false passport. 22.Further, when concluding that the applicant was prepared to ignore the reality of the situation, it seems that the Board had erroneously applied its subjective common sense. The applying of a decision-maker’s own common sense in non-refoulement claims has been disapproved of in ST v Betty Kwan[11]. A decision-maker is not entitled to make his or her own assumptions, conjecture or speculation as to what ought to have happened. 23.In light of the lack of meaningful assessment of the applicant’s credibility, and the Board’s applying of its own common sense or assumptions in taking the view that the applicant was fundamentally dishonest, I conclude that it is reasonably arguable that the Board’s Decision in its credibility assessment is tainted by an error of law, procedural unfairness or irrationality, and fails to meet the required high standards of fairness. F. Rejection of 4 Incidents: Grounds 2,5 and 6 F.1 The 4 Incidents leading to the applicant’s departure for Hong Kong 24.Under the heading of “The Incident”, the Board discussed the 4 incidents in which the applicant was threatened and attacked by the BNP people. According to the applicant’s claims, due to his active support for the BCL, he was subjected to threats and attacks from the BNP. The first attack happened at the end of 2002 / early 2003 (“Incident 1”), in which the applicant was punched by about 6 to 7 unknown men who were believed to have been working under Shakku. 25.In the second incident (“Incident 2”) in 2004, a group of about 6 to 7 BNP members demanded that the applicant pay them around 500,000 Bangladeshi Takas as donations to the BNP party if the applicant wanted to carry on with his trading business he was engaging in at the time. 26.The applicant did not pay the money as demanded. In 2005 (“Incident 3”), the same perpetrators as in Incident 2 demanded that the applicant pay the money they had previously demanded and told him that they could find him easily. 27.The fourth incident (“Incident 4”) occurred on 4 October 2006 when the applicant was abducted by 8 to 10 people; some of whom the applicant recognized as members of the BNP. It was after the applicant had agreed to withdraw his membership from AL, and the perpetrators had taken away the 300,000 Takas the applicant had on him, then the applicant was released after about 2 hours. The applicant had sustained injuries of a bleeding nose and mouth inflicted on him by the perpetrators using pistol handles. 28.Due to the powerful influence of Shakku, the local police did not believe what the applicant said when he made police reports of Incidents 2 and 4. 29.The applicant departed from Bangladesh to Hong Kong in the same month after Incident 4. F.2 Board’s alleged errors F.2.1 Failed to conduct proper evaluation of evidence -Incidents 1 and 2 30.The Board rejected the applicant’s evidence in relation to Incidents 1 and 2 after it respectively found that the applicant “was unable to say precisely when” Incident 1 occurred and that his description of Incident 2 was “very vague and generalized”. It concluded that his evidence was “fanciful” and inherently lacked credibility. The applicant complained in [20] and [21] of the Amended Form 86 that the Board was wrong in rejecting his evidence by having relied predominantly on his failure to recall peripheral details and alleged vagueness and speculations. 31.It is the applicant’s contention that the Board failed to meet the high standards of fairness due to the lack of a proper foundation in its finding of adverse credibility. The Board’s assessment based on “common sense” was not proper: see KM & Ors v TCAB[12] at [28] to [45]. 32.Furthermore, Mr Ho submitted, a decision-maker must exercise caution and remain alert to possible explanations before concluding that the evidence is vague or inconsistent: Attakora v Minister of Employment and Immigration[13]. The Board had erred in having failed to explore possible explanations from the applicant. F.2.1.1 My view 33.Based on the discussion regarding the erroneous use of subjective common sense in Section E.1 above and Mr Ho’s cited authorities (KM & Ors and Attakora), I respectfully agree with him that the Board has arguably failed to evaluate the applicant’s evidence beyond his testimony by considering the plausibility of the applicant’s accounts of the events. F.2.2 Failure to give sufficient reasons: Ground 2 F.2.2.1 Applicable principles 34.High standards of fairness require a decision-maker in non-refoulement claims to give adequate reasons:
35.It is Mr Ho’s submission that the Board has not applied the above stated principles when rejecting the applicant’s account in relation to the 4 Incidents F.2.2.2 My view 36.Mr Ho’s submissions have force. In my view, the Board’s given reasons I set out in [30] above for the rejection of the applicant’s accounts of Incidents 1 and 2 are arguably inadequate. I do not consider the Board’s given reason of lacking details (the applicant “was unable to say precisely when the first incident occurred”: Board’s Decision [90]) or being “vague and generalized” are sufficient to enable the applicant to understand which aspect(s) of his evidence the Board found to lack detail or be vague. 37.Similarly inadequate is the Board’s given reason for disbelieving the applicant’s account of Incident 3. The Board found that the applicant had fabricated his evidence relating to Incident 3 because the applicant’s description was found to have been “inherently implausible, fanciful and unpersuasive” (Board’s Decision at [93]). I agree with Mr Ho (Skeleton Submissions at [33]) that this stated reason makes it impossible for the applicant to understand how the Board came to the decision. 38.Further, the Board has also failed to adopt an active role by drawing to the applicant’s attention matters that needed clarification or elaboration stated in [34(2)] above when rejecting the applicant’s account of Incident 3. The Board’s Decision does seem to show that the Board had not given the applicant an opportunity to address matters that required clarification or elaboration. Hence, the Board has failed to apply a high standard of fairness as the Board could not assume that the applicant could foresee all the points troubling the Board: see ST v Betty Kwan (supra. at [39]-[40]). 39.As for Incident 4, the Board failed to provide a separate and specific reason for its rejection. It simply referred to its “earlier findings in relation to the [applicant’s] general credibility”. Apart from the lack of adequate reasons, the Board’s findings on the applicant’s general credibility are also tainted: see Section E above. 40.By applying the principle elucidated in Re Masud MD (supra.), I find that the Board appeared to have erred in its rejection of all the 4 Incidents. This is because the Board had apparently failed to inform the applicant that it would reject the 4 Incidents and provide the applicant an opportunity to reply and elaborate. As confirmed by Mr Ho, nowhere in the transcript of the hearing before the Board shows that the Board has done so. 41.For the reasons given above, I consider that the Board’s Decision arguably failed to accord the high standards of fairness by giving sufficient reasons to enable the applicant to understand why his accounts of the 4 Incidents were rejected. F.2.3 Failure to give holistic consideration on the cumulative effects of the 4 Incidents: Ground 5 42.It is Mr Ho’s contentions that the Board, apart from having failed to give sufficient reasons in its findings on the 4 Incidents, also failed to consider the 4 Incidents cumulatively. Mr Ho submitted that the Board had erred by analyzing each of the 4 Incidents in isolation. Under the heading “Incidents”, the Board firstly found that the 4 Incidents had not occurred in the manner described by the applicant on the basis of its earlier adverse credibility finding (which I have discussed in Section E above). The Board afterwards rejected each of the 4 Incidents individually. It did not appear that the Board had assessed the credibility of the 4 incidents on the entire evidence and the possible inter-locking relationship between them. 43.The UNHCR Handbook ( at [ 201]) provides:
44.When a decision-maker assesses events in isolation, it is likely that the totality of the evidence and cumulative risk of harm arising from all relevant factors will be overlooked: Canada (Minister of Citizenship and Immigration) v Munderer [19] 45.In assessing the 4 Incidents individually without considering the cumulative effects these had on the likely risk of harm, I consider that the Board had arguably fallen into error by having overlooked the overall seriousness of the 4 Incidents. The Board’s Decision is arguably tainted with irrationality and procedure unfairness. G. Future Risks Assessment - Erroneous analysis of political profile and risk level without having taken into account the relevant COI (Grounds 3 and 4) 46.In assessing the applicant’s future risk of harm from the BNP people, the Board found (in [86] of the Board’s Decision) that the applicant was only “an ordinary, low‑level, member of the” CL party though it accepted that he was a member of CL in the past. 47.Mr Ho submitted that the Board’s said finding was erroneous as it was based on its mere speculation, referring to ST v Betty Kwan (supra. at [43]). Further, Mr Ho stated that in [86] of the Board’s Decision, the Board’s suggestion that only high profile or influential party members would be targeted was not supported by any COI. In the DFAT Country Information Report that the applicant’s lawyer placed before the Board, it states that “Bangladesh is historically prone lo high levels of politically motivated violence (PMV). Today, PMV manifests in the form of violent clashes between supporters of different factions of the same party (intraparty violence), supporters rival parties (inter-party violence), …Fatalities and serious injuries often result from these clashes.”[20] 48.Mr Ho therefore submitted that the above COI indicated that even ordinary member like the applicant could be assaulted in a rally, and extorted and kidnapped by BNP members. The Board therefore has wrongly applied its own perception on the linkage between the level of political profile and risk faced by that person. 49.I agree with Mr Ho’s submissions. In [86], [102] and [103] of the Board’s Decision, the Board had clearly accepted that the applicant was a member of the CL but its conclusion that the applicant’s low level participation would not be targeted by the rival BNP was not supported by any evidence but only its own assumption, which was not permissible: see ST v Betty Kwan (supra.). 50.At the hearing before the Board, the applicant’s legal representative submitted a 309-page COI. However, the Board did not appear to have made reference to or mention of any of the COI the applicant submitted. A high standard of fairness obliges a Board to indicate the materials to which it had had regard in reaching the decision. Should a Board reject the materials, it should demonstrate that it is aware of them and had taken them into account, and the reasons for the rejection of the COI: Re MI [21] 51.In my view, the above erroneous finding seems to have tainted the Board’s Decision on its assessment of the applicant’s future risks of harm as it was one of the past events the Board had taken into account when assessing the future risk. In the circumstances, it is arguable that the Board’s Decision is tainted with irrationality and procedural unfairness in that it had failed to demonstrate it had conducted an independent assessment of the COI before it and make its own findings. 52.For the above reasons, it seems at least reasonably arguable that the Board’s Decision is wrong at law, tainted by procedural unfairness and that it does not meet the required high standards of fairness. H. Conclusion 53.In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 54.Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s decision, and direct that he shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party. I. Orders 55.Leave is granted to the applicant to issue a judicial review application against the Board’s Decision. 56.The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party. 57.Costs be in the cause of the proceedings, and the applicant’s own costs be taxed in accordance with the Legal Aid Regulations. Dated the 15th day of April 2026
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 [1] The applicable grounds are risk of torture under Part VIIC of the Immigration Ordinance (“torture risk”) , BOR 2 risk (this refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”), BOR 3 risk (this refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR) and persecution risk (This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol) under the USM (This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293. [2] Re Zunartyah [2018] HKCA 14 at §23. [3] [1988] AC 958 per Lord Keith at 994F-G. [4] [1990] HKCFI 198 at [158]. [8] [2008] EWCA Civ 233 at [9]. [11] [2014] 4 HKLRD 277 (CA) at [43]. [12] [2020] 3 HKC 608. [13] [1989] FCJ 444 at [10]. [14] [2009] 2 HKLRD 346 at 395 [222] quoting the CFA’s Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289at [51]. [15] [2016] HKCFI 336 at [34]. [16] [2021] HKCA 1449 at [32]-[44]. [17] (1894) 6R67(HL) (28 Nov 1893). [18] “Handbook And Guidelines on Procedures and Criteria For Determining Refugees Status” Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees. Reissued, Geneva, December 2011. [19] 2008 FCA 84 at [39] to [43], the Canadian Federal Court of Appeal. [20] HB/310. [21] [2014] HKCA 482 at [40]. | |||||||||||||||||||||||||||||||||||||
Cases cited in this judgment