Sahid v. Torture Claims Appeal Board

HCAL 1692/2021

[2026] HKCFI 2769

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1692 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;

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 December 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 7 October 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/HCAL001692_2021_files/the_Board's_Decision.pdf

2.The Board found that the applicant had not established a case for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 7 January 2019, 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 the Awami League (“AL”), as he was a supporter of the Bangladesh Nationalist Party (“BNP”).

Oral hearing

5.The applicant requested for an oral hearing of the Leave Application and his case was heard on 7 May 2026.

6.When this court asked the applicant for the grounds of his intended judicial review, he merely replied that he had problems in his home country and he had presented his problems to the Board, but he could not remember what was 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 grounds for his intended judicial review in Form 86, nor in his supporting affirmation dated 15 December 2021.

9.As aforesaid, the applicant did not advance any grounds at the oral hearing before this court either. He only mentioned that he still had problems in his home country.

Discussion

10.First of all, the applicant’s problems and their associated risks 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.

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, 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.

13.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 8 September 2021. The applicant was present and was given the chance to present his case to the Board in person.

14.As can be seen from paragraphs 19 to 33 of the Board’s Decision, the Board had asked the applicant questions in relation to his claims, including his involvement with BNP, his experience as a supporter who had supported BNP for more than 20 years, and the reason he feared AL people, etc.

15.The Board found that, even if the applicant’s claims were accepted as truthful, what they amounted to was that he was a supporter of BNP, not a member of the party or an activist in any sense. The applicant himself was never harmed by AL members, and it was not clear from his evidence at the hearing whether he was ever seriously threatened with harm. It was also not clear what he feared would happen should he return, other than a possibility that he might face trouble. In his evidence, he admitted that it was possible that AL members would do nothing to him because of the time lapse since his departure from the country in 2014.

16.Given the applicant’s lack of knowledge about BNP despite his claimed involvement with the party for more than 20 years, and the inconsistency between his claims regarding the treatment of BNP members prior to 2014 and the available country of origin information (“COI”), the Board considered that the applicant’s claim that he feared serious harm or death at the hands of AL members because of his support for BNP should he return to Bangladesh was not credible.

17.The Board put considerable weight on the fact that the applicant’s evidence that people in Bangladesh were able to support BNP and other opposition parties prior to 2014 without facing any threat or harm from AL was completely contrary to the available COI. The Board also placed weight upon the inconsistency between the applicant’s claims regarding the assault upon his cousin and his evidence at the hearing that there was no particular event that triggered his departure from the country.

18.Accordingly, the Board found that the risk of the applicant being harmed by AL members should he return to Bangladesh was non-existent. The Board did not accept that he was an active supporter of BNP, or that he was harmed or threatened by AL members.

19.In the circumstances, the Board concluded that the applicant had failed to establish that he would face a real risk of ill-treatment as claimed upon refoulement.

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

21.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).

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

23.The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

24.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.

25.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

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

Dated the 13^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