Jashim Howlader v. Torture Claims Appeal Board

HCAL 1046/2021

[2026] HKCFI 2629

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1046 OF 2021

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 26 July 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 30 June 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/HCAL001046_2021_files/the_Board's_Decision.pdf

2.The Board found that the applicant had failed to demonstrate that he was entitled to non-refoulement protection on the grounds of BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3] under the Unified Screening Mechanism (“the USM”).  Accordingly, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 28 December 2018 and confirmed the same, which rejected the applicant’s non-refoulement claim on the said grounds under the USM.

3.The applicant’s previous torture claim had been rejected by the Director and on appeal by the Board on 28 August 2013 and 16 April 2014 respectively.

4.Thus, the applicant’s claim for non-refoulement protection on the ground of Torture Risk[4] had been finally disposed of, and it was not necessary for the Board to assess such risk in the Board’s Decision again (see G and others v Lam and others [2020] HKCFI 377).

The applicant’s case

5.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.

6.In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, he would be harmed or killed by members of the Awami League (“AL”), in particular by his neighbour Delawar Hossain Talukder (“Talukder”) who was the Chairman of the local AL Union Council and had good connections with AL leaders in the Bangladeshi Government, since the applicant was a member of the Bangladesh Nationalist Party (“BNP”) and refused to leave BNP and join AL.

Oral hearing

7.The applicant requested for an oral hearing of the Leave Application.  His case was heard on 23 April 2026.

8.At the hearing, apart from confirming that the Board’s Decision was the subject matter of the Leave Application, the applicant merely mentioned that his ground for the intended judicial review was based on the political problems in his country, and his problems started after his grandfather passed away.  He therefore left his country and came to Hong Kong to save his life.  He also said that Bangladesh had problems for the last 17 years and that could be seen on the news, but he could not show any proof of the same.

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.The applicant did not state any grounds for his intended judicial review in his Form 86, nor in his supporting affirmation dated 26 July 2021.  In his affirmation, the applicant only stated that he was applying for judicial review against both the Board’s Decision and the Director’s Decision.  Nevertheless, the applicant confirmed at the oral hearing before this court that the Board’s Decision should be the only subject matter of the Leave Application.

11.As mentioned, the applicant did not assert any valid ground for his intended judicial review at the oral hearing before this court.  He merely repeated his political problems in his country.

Discussion

12.First of all, the applicant’s political problems in his home country 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.

13.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).

14.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.

15.In assessing the petition by the applicant, the Board held an oral hearing on 2 June 2021.  The applicant was present and was given the chance to present his case to the Board in person. 

16.As can be seen from paragraph 17 of the Board’s Decision, the Board found the centerpiece of the applicant’s claim to be incredible.  Some aspects of the applicant’s evidence at the Board’s hearing were inconsistent with information he gave in other settings, others were inconsistent with credible country of origin information (“COI”) and some defied logic.

17.In gist, the Board was not convinced that (1) the applicant ever resided in Dhaka; (2) the applicant was ever a follower or member of BNP, or that his alleged connections with BNP existed; (3) the applicant had proven any of the alleged assaults; (4) there was enmity between Talukder and the applicant and/or the applicant’s family; and (5) the applicant came to Hong Kong to avoid Talukder.

18.Significantly, the Board found from updated COI that Talukder died shortly before the Board’s hearing.  Thus, the applicant no longer faced risks from Talukder in any event.

19.Moreover, the Board found that although there was COI supporting the applicant’s claim that the Bangladeshi police were seriously corrupt and would not offer assistance unless bribed, there was also reliable COI indicating that the Bangladeshi Government had been taking practical steps to improve their effectiveness and to monitor the conduct of Bangladeshi police.  The most recent news available showed that the Bangladeshi Government was actively arresting and pursuing wrongdoers of the country, even if they were AL members.

20.Lastly, the Board was of the view that the applicant’s risk of being killed or subjected to ill-treatment by local AL members could be further reduced if not negated by the applicant relocating to another area of the country.  The Board considered that Dhaka would be a suitable option for the applicant’s relocation, given the many opportunities for the applicant to earn a living there.

21.Hence, the Board did not accept that the applicant had established his claims for non-refoulement protection in Hong Kong on the aforesaid grounds.

22.The assessment of evidence, COI 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.For the sake of completeness, this court noticed that Ms Jane Curzon Lo signed the Board’s Decision as “Adjudicator of the Non-refoulement Claims Petition Office” instead of “Member of the Torture Claims Appeal Board”.  This is not a correct description of her capacity, as she was not making the determination on behalf of the Non-refoulement Claims Petition Office.

24.Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme).  Thus, only the members of the Board have the powers to hear and determine the applicant’s petition.

25.Nevertheless, the wrong description of her capacity does not nullify the Board’s Decision, as Ms Lo was indeed a member of the Board and did have the power to determine the applicant’s petition. 

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 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. 

27.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

28.For reasons aforesaid, the Leave Application is dismissed.

Dated the 6^th day of May 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