Bashar Mohammad Abul v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 876/2023

[2026] HKCFI 4811

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 876 of 2023

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Val Chow:

1.  Form 86 be amended on the court’s own motion as follows:-

a.  The Torture Claims Appeal Board / Non-Refoulement Claims Petition Office be named as the Putative Respondent; and

b.  The Director of Immigration be named as the Putative Interested Party.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By Form 86 filed on 5 June 2023 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 22 May 2023 (the “Board’s Decision”).

2.As the challenge is against the Board’s Decision, the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.An oral hearing was requested by the Applicant. It took place before me on 29 July 2026 (the “Hearing”) and the Applicant attended in person.

Background

4.Material aspects of the Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and need not be repeated herein. The hyperlink to the Board’s Decision is included below[1] for reference. The gist of the Applicant’s claim is that, if the Applicant is refouled to his home country of Bangladesh, he will face a real risk of serious or fatal harm by associates of the Awami League (“AL”), a political party because of his membership in the Bangladesh Nationalist Party (“BNP”), a rival to the AL.

Discussion

5.The leave application is intended to be a filtering process and elaborate reasons are not necessary, see: Re Zunariyah [2018] HKCA 14 at §23. Hence, I shall set out the brief reasons for my decision below.

6.The relevant general principles are well established. Judicial review does not operate as a further avenue of appeal. Though in non-refoulement cases, the Court applies a high standard of fairness to review the decision of the Board with anxious scrutiny due to the seriousness of the issue at hand, the Court must not usurp the role of the Board. Assessment of evidence, country of origin information (“COI”) materials, risk of harm, availability of state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board, see: Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

7.It is also trite law that, an applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection HCAL 21/2015 (unreported, 22 December 2016) per Chow J (as he was then) at §142. Where a Form 86 contains only general assertions without particulars as to underlying facts or matters upon which the Board’s Decision is said to be erroneous, such assertions are not effective grounds to support a judicial review, see: Re Haider Khalil [2021] HKCA 223 at §16.

8.In the Form 86 and the affirmation in support, the Applicant did not put forward any specific grounds in support of the Leave Application. He only made blanket and wholly unparticularised allegations that the Board’s Decision was unreasonable, the Board failed to consider all matters raised in these claims and/or failed to give adequate reasons. The Applicant failed to elaborate on the manner in which the Board is said to have erred with reference to the underlying circumstances. On such failure alone, the Leave Application should be dismissed.

9.Notwithstanding the serious defects in the application papers and for completeness, I have considered the Board’s Decision, I do not find any error of law, procedural unfairness or irrationality which can give rise to a reasonably arguable case for review. There is no indication that the Board had failed to take into account any relevant matters as alleged by the Applicant.

10.Contrary to the Applicant’s allegation, the Board has given adequate reasons for its decision and has conducted a meticulous analysis of the evidence put before it. Amongst others, the Board was plainly correct in finding that there is no evidence of any real risk of serious harm:-

(1)  Material aspects of the Applicant’s evidence were found to be incredible. He kept changing his narrative as to whether he was an ordinary member of the BNP or the general secretary of its local branch (§§17, 43, 72, 109). There was no documentary evidence relating to his involvement in BNP or the injuries that he alleged to have suffered at the hands of AL supporters despite claims of medical treatment at the hospital (§§73, 75, 112-113).

(2)  There was also no reason why AL supporters would pursue him (who was at most a relatively low level member of the BNP) throughout Bangladesh (§§78, 88, 108, 115, 118).

(3)  The Board had carefully considered the Applicant’s claim that he became forgetful because of a past injury in the head but ultimately found that the Applicant was being deliberately unreliable (§104). I find no reason to disturb the Board’s assessment as the Board has, after all, the benefit of listening to the live evidence of the Applicant. There is also no medical evidence suggesting that the Applicant had any serious medical issues which affected his mental faculties or memory.

11.In short, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.

12.At the Hearing, the Applicant raised a new allegation. He told me that he found out from his wife’s neighbour that his wife was killed by associates of AL about 2 weeks before the Hearing. I do not regard this new allegation as credible or that it would assist the Applicant’s claim:-

(1)  There is no affirmation evidence from the Applicant or the neighbour on the alleged murder of the Applicant’s wife. The Applicant was also unable to provide any documentary evidence of the alleged murder
(e.g. a death certificate or hospital records).

(2)  I also find the Applicant’s account of the alleged murder to be vague, illogical and unbelievable. He only claimed that his neighbour saw the murder on camera but was unable to offer any further detail. The Applicant was unable to explain why he believed that his wife’s murderers were associated with the AL. When I asked the Applicant whether a report was made to the police, he claimed that he did not know whether such a report has been made.

(3)  It is astonishing that the Applicant has not taken further steps to make inquiries with the neighbour to find out the circumstances of his wife’s death and to seek assistance from law enforcement authorities.

(4)  Even if I accept that the Applicant’s wife was indeed murdered, there is no evidence that the wife’s murder had any connection with the Applicant. As noted in the Board’s Decision (§68), the Applicant told the Board that he stopped contact with his wife and that he had separated from her since 2020.

Conclusion

13.In the circumstances, I refuse to grant leave for judicial review. I make an order that the Form 86 be amended as described above and the Leave Application be dismissed.

Dated the 16^th day of October 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