Hossain Md Saddam v. Torture Claims Appeal Board
Read the full judgment text of HCAL 2166/2025 on BabelCite. This High Court CFI judgment was delivered on 21 July 2026.
1. By way of Form 86 dated and filed on 26 September 2025, 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 22 August 2025 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
Cites 3 cases
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HCAL 2166/2025 [2026] HKCFI 4117 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2166 OF 2025
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 26 September 2025, 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 22 August 2025 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant’s application for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 21 January 2025 and confirmed the same, which rejected the applicant’s non-refoulement claim. Amendments 3.In Form 86, the applicant named the Board / “NON-reFoulement Claims Petition OFFice” and the Director as the putative respondents, when only the Board should be so named. 4.He also named the Director and the Board / “non-reFoulement Claims Petition OFFice” as the putative interested parties, when only the Director should be the putative interested party. 5.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a party at all. 6.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”. The applicant’s case 7.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. 8.In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, he would be harmed, ill-treated or even killed by members of the Awami League (“AL”) in his local area as he was a member of the Bangladesh Nationalist Party (“BNP”). The applicant also said that he was unable to pay some money he borrowed on loan. Oral hearing 9.The applicant requested for an oral hearing and his case was heard on 2 July 2026. 10.When this court asked the applicant whether he wanted to rely on the handwritten document annexed to his supporting affirmation dated 15 September 2025 as his grounds for the intended judicial review, the applicant said that he asked someone to write the said document for him, he only remembered some of its contents. After the document was read to the applicant by the interpreter, the applicant confirmed that he wanted to rely on the grounds stated therein, but he had nothing to elaborate on the grounds and he had no other grounds to add. He only mentioned that he was attacked by the AL members who came to threaten him. Grounds for judicial review 11.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). 12.The applicant did not advance any grounds for his intended judicial review in Form 86. In the said document annexed to the applicant’s supporting affirmation, he reiterated the whole factual background of his non-refoulement claim and confirmed that they were true. He also alleged that although AL was not the ruling party in Bangladesh any more, the AL members were still powerful and he could not expect that he would receive protection from the Bangladeshi police. He further mentioned that he could not relocate to other parts of Bangladesh because he had no financial means, and no relatives or friends who could help him to relocate. 13.As aforesaid, at the oral hearing, the applicant merely wanted to rely on the said document annexed to his supporting affirmation, and mentioned that he was threatened and attacked by the AL members. Discussion 14.First of all, the applicant’s danger from the AL members, as well as the availability of state protection and viability of internal relocation, had all been duly assessed 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. 15.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). 16.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. 17.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 23 July 2025 with the Remote Official Visit System as the applicant was remanded at Tai Tam Gap Correctional Institution at the material time. The applicant was present and was thus given the opportunity to present his case to the Board. 18.As can be seen from paragraphs 11 to 33 of the Board’s Decision, the Board had asked the applicant extensive questions during the hearing in order to understand and assess his claims. The Board was of the view that the applicant was not a truthful witness. The Board found that given the applicant’s claimed membership of BNP, it was unreasonable and illogical that he could not remember that his father was a BNP member. The Board was doubtful about the applicant’s claim that he was a BNP member, which was a fundamental issue in the applicant’s claim. 19.Moreover, the Board found that even if it was true that the applicant was a BNP member as claimed, he did not hold any post and did not play any significant role in BNP. It was not believable that the AL members would want to target the applicant personally or want to harm or kill the applicant merely because of his membership in BNP. 20.Due to the material inconsistency and discrepancies in the applicant’s evidence, the Board also considered that the applicant has exaggerated the extent of injuries he had suffered as a result of the only attack on him. Further, the Board considered that the applicant’s claim that he had gone to various places in Bangladesh and did not return home after the attack in order to avoid the AL members not believable. The Board found that the applicant fabricated his evidence given to the Board that the AL members had threatened to torture his brothers if he did not leave BNP. 21.The applicant told the Board that the reasons why he did not want to return to Bangladesh were because of his fear of being harmed or killed by the AL members and also because he was unable to pay some money he borrowed on loan. However, the Board found that the applicant’s real motive for seeking non-refoulment protection in Hong Kong was suspicious. 22.Despite its observations as summarised above, the Board found that even if the applicant’s claims were accepted, the Board would still dismiss his appeal/petition. 23.On the applicant’s evidence that his parents advised him not to return to the country as there were fighting and killing going on, the Board found no evidence to suggest that the applicant was the target of those fighting and killing. The AL members who attacked the applicant were non-state actors and were not acting in any official capacity. The applicant’s alleged injuries in the only attack hardly attained the minimum level of severity required for international protection. The Board also found that the AL members had no real intention to seriously harm or kill the applicant, as they could have done so, but they did not. 24.In addition, the Board found that the applicant’s delay in making the non-refoulement claim was not consistent with the conduct of a person who was genuinely facing a grave risk of life. It also reflected that the applicant’s perceived risk of being harmed by the AL members was not as imminent and substantial as he asserted. 25.The Board noted that since AL was no longer the ruling party in Bangladesh, it was not believable that the Bangladeshi police would not take any actions against the AL members if it was necessary for them to do so in order to properly carry out their law enforcement duties. The applicant in fact never reported the claimed assault to the police. Based on the extensive country of origin information (“COI”) before the Board, the Board found that despite the existence of corruption in the country, the Bangladeshi government had taken practical steps to monitor the conduct of the Bangladeshi police and improve their effectiveness. The Board was of the view that state protection would be available and accessible to the applicant if he resorted to it. 26.More importantly, the Board had given its full reasons in paragraphs 78 to 83 of the Board’s Decision for its finding that internal relocation was a viable option for the applicant to avoid the localised risk he faced from the AL members. 27.Thus, the Board was satisfied that the applicant was not at a real risk of any of the proscribed forms of harm upon his return to Bangladesh. 28.The Board had indicated that it was also the applicant’s claim that he did not want to return to Bangladesh because he was unable to pay some money he borrowed on loan. However, from the Board’s Decision, it seems that the applicant did not claim that he faced any risk from the creditor(s). Thus, the applicant’s appeal/petition was assessed against his claimed risk from the local AL members. In any event, the applicant’s failure to repay a personal debt did not in itself constitute a valid ground to claim for non-refoulement protection in Hong Kong. 29.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. 30.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. 31.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 32.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