Hossain Arif v. Torture Claims Appeal Board
Read the full judgment text of HCAL 1011/2021 on BabelCite. This High Court CFI judgment was delivered on 21 July 2026.
1. By way of Form 86 dated and filed on 19 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 9 July 2021 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
Cites 8 cases
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HCAL 1011/2021 [2026] HKCFI 4106 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1011 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:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 19 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 9 July 2021 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 10 December 2018, 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 Awami League (“AL”) as he was a supporter of Bangladesh Nationalist Party. The applicant claimed that AL members had fabricated a case against him, his father and his brother. Oral hearing 5.The applicant requested for an oral hearing of the Leave Application and his case was heard on 2 July 2026. 6.At the hearing, the applicant confirmed that he would rely on the grounds stated in the document annexed to his Form 86 with the title “GROUNDS ON WHICH RELIEF IS SOUGHT”, as well as the grounds stated in his supporting affirmation dated 19 July 2021. He added that his threats in Bangladesh still existed, he came here with his wife who is also an asylum seeker and they now have a boy who is one year old. The applicant said that he would not leave his wife and baby alone in Hong Kong, and he would go back when his son grew older. The applicant also said that there were a lot of extra-judicial killings and kidnapping in Bangladesh and he had death threats. The new government was the same and hence he was still at risk. 7.The applicant then wanted to show his son’s birth certificate and his marriage certificate to this court. However, as it was not for this court to receive new evidence, the applicant’s request was not acceded to. 8.When this court asked him what was wrong with the Board’s Decision, he said that the Board did not consider the evidence properly and he was not satisfied with the decision. He also said that he made the Leave Application in 2021, almost 5 years ago, new incidents happened and he could submit new evidence. 9.However, as it is not for this court to re-assess the applicant’s case based on new evidence, the applicant’s request to submit new evidence for incidents happened after the Board’s Decision was refused. Grounds for judicial review 10.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). 11.The applicant annexed a document to his Form 86 with the title “GROUNDS ON WHICH RELIEF IS SOUGHT”, which contained some general grounds for the intended judicial review. In that document, the applicant advanced some more grounds under the heading “Background of the Applicant”, which bore essentially the same contents as stated in his supporting affirmation dated 19 July 2021 under the heading “Factual Background”. The applicant basically complained that he was denied of a hearing for his appeal, and that the Board had relied on sources of news which were not officially recognized, or were hearsay or outdated. 12.The contents as stated in the above-mentioned documents were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It seems that the applicant had combined these standard grounds and used them without any regard to his own situation. Nevertheless, as the applicant is relying on those grounds to make the Leave Application, this court will still deal with the grounds as discussed below. 13.As aforesaid, at the oral hearing before this court, the applicant mentioned that his wife is also an asylum seeker, they now have a baby boy here, his risks in his country remained the same and new incidents happened after the Board’s Decision. Discussion 14.The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. 15.Thus, the general assertions put forward by the applicant in the document titled “GROUNDS ON WHICH RELIEF IS SOUGHT”, which merely contained “key words” such as the Board was “in breach of procedural fairness”, had “unlawfully fettered his discretion”, the Board’s Decision was unreasonable and irrational, or that the Board “failed to meet the greater care and duty owed to a self-represented claimant”, cannot help the applicant at all. 16.His accusation that he was not given a fair opportunity to keep forward his submissions in an oral hearing was completely unfounded and plainly untrue. In assessing his appeal/petition, the Board held an oral hearing on 12 May 2020 and the applicant was present. Hence, the applicant was given the opportunity to present his case to the Board in person. 17.The applicant also failed to identify which pieces of news or cases that the Board relied on were not officially recognized, or were hearsay or outdated. Contrary to the applicant’s accusation, this court finds that the Board had clearly identified the source of all country of origin information (“COI”) that it referred to in the Board’s Decision. 18.Thus, this court finds that none of the grounds asserted by the applicant constitutes a valid ground to challenge the Board’s Decision. 19.As to what the applicant said at the oral hearing, the facts that his wife is another non-refoulement claimant and they have a baby boy here are all irrelevant to the Leave Application. 20.The applicant’s assertions that new incidents happened after the Board’s Decision, and that extra-judicial killings and kidnapping still happened in his country cannot help him either. The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage. 21.Thus, the applicant cannot ask this court to assess or re-assess his non-refoulement claim based on matters that had not been presented to the Board. 22.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). 23.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. 24.As can be seen from the Board’s Decision, the Board had given a detailed analysis of the applicant’s claims and its reasoning in rejecting the applicant’s claim for non-refoulement protection. 25.In gist, the Board found that there was no or no sufficient evidence to show that the applicant had sustained physical or mental injuries required by law to qualify him for being a victim of torture or CIDTP[1]. There was no public officials or other person acting in an official capacity who played any part in the infliction of harm on the applicant, or instigated or acquiesced in the perpetuation of it. The applicant’s dispute with AL members was a personal dispute only. 26.The Board found the applicant’s allegation that he could not seek state protection from the Bangladesh government was untrue without any evidence in support. There was no evidence to suggest that had he reported to the police or other authorities, the Bangladeshi government still refused to render protection to him. 27.The Board found from extensive, fully-referenced COI that despite setbacks, police reforms were ongoing in Bangladesh and the government had taken actions to curb corruptions. Alternative avenues to seek justice were also available. The Board considered that there was reasonable state protection available to the applicant in his country. 28.With regards to the applicant’s claims that he was falsely accused and he absconded, the Board found that he fled his country in order to avoid arrest and due process of the law because he was prosecuted and summonsed to appear in court. The Board was of the view that whether the applicant would be convicted or acquitted was irrelevant to his claim. The applicant was precisely a fugitive from justice instead of a victim of injustice. 29.In addition, the Board considered that the applicant’s failure to seek protection while he was in China and India cast doubt on the credibility of his assertion for genuine, imminent and personal safety problems. 30.The Board had also laid out its full reasons in paragraphs 69 to 74 of the Board’s Decision for a finding that the applicant could avoid AL members by internal relocation. The Board considered that the applicant would have no difficulty in re-establishing his career in Dhaka or Chittagong. 31.Thus, the Board concluded that the applicant had not substantiated a case for non-refoulement protection on any of the applicable grounds under the USM. 32.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 that the Board had considered the evidence properly and there was nothing wrong or unreasonable in the way the Board reached its conclusion. 33.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. 34.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 35.For reasons aforesaid, the Leave Application is dismissed. Dated the 21st day of July 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
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Cases cited in this judgment