Case Document

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HCAL 1946/2023

[2026] HKCFI 5876

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1946 OF 2023

BETWEEN

	Kazi Mokles	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

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 30 October 2023, 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 10 October 2023 (“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/2023/HCAL001946_2023_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 12 August 2021 (“the Director’s Decision”) failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board affirmed the Director’s Decision, 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 people of the Awami League (“AL”) due to his role in the Bangladesh Nationalist Party (“BNP”) and his refusal to switch his allegiance to AL.

Oral hearing

5.The applicant requested for an oral hearing and his case was heard on 15 October 2026.

6.The applicant attached a document with the title “GROUNDS” to his supporting affirmation dated 30 October 2023. When this court asked the applicant to elaborate on the grounds stated therein, the applicant merely told this court that he would rely on the document and everything had been written on it.

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 judicial review in Form 86. In his supporting affirmation dated 30 October 2023, he stated that he did not agree with the Board.

9.In the document with the title “GROUNDS” that was annexed to his supporting affirmation, the applicant mentioned a few matters, which are summarised as follows:-

(1)  The Board did not truly consider his claim;

(2)  He was given a lawyer at the screening interview, but the lawyer did not help him at all. The applicant only talked to the interpreter, and when the interpreter was writing down his statement, his lawyer was sleeping;

(3)  The Board dismissed his claim but showed some bad arguments. The Board was prepared to dismiss his claim before the oral hearing;

(4)  The adjudicator should be one kind of a judge, but the adjudicator assessing his case was not neutral, so he [sic] did not find any reason to grant leave to the applicant.

10.As aforesaid, at the oral hearing before this court, the applicant merely said that he would rely on the grounds stated in the said document and everything had been written there.

Discussion

11.First of all, the applicant’s comment in his supporting affirmation that he did not agree with the Board’s Decision cannot help him. He did not say why he did not agree with the Board’s Decision, how the Board’s Decision was wrong or how the Board erred in its assessment of his non-refoulement claim and/or his appeal/petition.

12.In ground (1) of the applicant’s document as summarised above, the applicant complained that the Board did not truly consider his claim. However, this ground was advanced without any particulars. The applicant did not state how the Board had failed to truly consider his claim, or how his claim ought to be considered.

13.The applicant complained in ground (2) about the lawyer assigned to assist him at the screening interview. However, there was nothing before this court to support the applicant’s allegation in this respect. In any event, if he found that the lawyer was not assisting him at all or was even sleeping when his statement was being recorded, he should have raised this complaint to the interviewing officer, who should be present at the material time. He could and should also have complained against the lawyer to the Duty Lawyer Service.

14.More importantly, the applicant failed to indicate how he had been prejudiced as a result of the attitude of the lawyer. Thus, ground (2) has no substance.

15.In ground (3) as summarised above, the applicant asserted that the Board had showed some bad arguments when dismissing his claim, and was prepared to dismiss his claim even before the Board’s hearing. Again, this ground was advanced without any specificity. The applicant did not state what “bad arguments” the Board had given, or why he believed that the Board was prepared to dismiss his claim even before the Board’s hearing.

16.In fact, this court notes from the Board’s Decision that in order to be as fair as possible to the applicant, the Board had agreed to admit the applicant’s late documents submitted at the Board’s first hearing on 18 May 2023 into evidence, and adjourned the hearing so that the documents could be translated and taken into account. The Board held a second hearing on 20 September 2023 and asked questions of the applicant in relation to all the new evidence (see paragraphs 5 and 6 of the Board’s Decision). This is indicative that the Board was careful in considering the applicant’s claim and his documents, even if they were submitted late and without translations.

17.Thus, there is simply no reason to believe that the Board was prepared to dismiss the applicant’s claim even before the Board’s hearings.

18.In ground (4), the applicant complained that the adjudicator assessing his case was not neutral, and he [sic] did not find any reason to grant leave to the applicant. The applicant did not specify what the adjudicator had done to show that she was not neutral. The mere fact that the Board found the applicant’s appeal/petition failed on all the applicable grounds under the USM cannot in itself be interpreted as the Board not being neutral in its assessment of the applicant’s case.

19.Thus, this court finds that none of the matters asserted by the applicant in his affirmation and the document with the title “GROUNDS” constitutes a valid ground to challenge the Board’s Decision.

20.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).

21.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.

22.As aforesaid, the applicant was afforded two hearings by the Board. Thus, he was given the opportunity to present his case to the Board in person.

23.As can be seen from the Board’s Decision, the Board had duly considered the applicant’s claims and all the documents he submitted to the Board. The Board’s findings on the applicant’s claim and evidence, and its reasons for concluding that the applicant’s appeal/petition against the Director’s Decision failed on all the applicable grounds, were laid out in paragraphs 25 to 41 of the Board’s Decision.

24.In gist, the Board found so many indicators of negative credibility in the applicant’s claim that it was unable to attach any credence to his claims or any weight to the documents that the applicant submitted. The Board concluded that the applicant had established only his status as a national of Bangladesh. The Board found no background information or other evidence to suggest that merely by dint of that status alone, the applicant might face any risk of persecution, torture, ill treatment or arbitrary deprivation of life upon his return to Bangladesh.

25.This court finds that the reasons given by the Board for not being able to afford the benefit of the doubt to the applicant fully justified.

26.Although the Board did not consider state protection and internal relocation, it was unnecessary to make findings on the availability of state protection as the Board found the applicant was not at a real risk of any of the proscribed forms of harm.

27.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).

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

29.The finding of facts in relation to the applicant’s case, including the assessment of evidence 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 21^st day of October 2026

( Gladys LEE )
for Registrar, High Court

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

Notes for the applicant: If leave has been granted, the applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent/Handed to the applicant/the applicant’s solicitors on: 21/10/2026 Applicant’s ref. no: Nil		Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 21/10/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 18629 Director of Immigration Putative interested party’s ref. no.: QA T/C 590/21 (Formerly RBCZ 10891/20) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)