Case Document

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HCAL 2175/2024

[2026] HKCFI 5826

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2175 OF 2024

BETWEEN

	Islam Mohammad Khairul	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 or counsel in open court;

Order by Deputy High Court Judge Michael WONG:

1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.

2. 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 18 November 2024, 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 October 2024 (“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/2024/HCAL002175_2024_files/the_Board's_Decision.pdf

2.The Board rejected the applicant’s claim for non-refoulement protection 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 13 August 2024 and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendment

3.In naming the Board as the putative respondent in Form 86, the applicant spelt the Board’s name wrong.

4.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

The applicant’s case

5.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.

6.In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, he would be harmed or even be killed by his relatives from the Awami League due to a land dispute.

Disposal on paper

7.The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

8.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).

9.The applicant did not advance any grounds for his intended judicial review in Form 86, nor in his supporting affirmation dated 18 November 2024.

Discussion

10.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).

11.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.

12.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 14 October 2024 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person.

13.As can be seen from the Board’s Decision, the Board had duly considered the applicant’s claim, and laid out its assessment on the applicant’s credibility in paragraphs 30 to 37 of the Board’s Decision.

14.In gist, the Board found that the applicant had made quite a number of suspicious allegations during the Board’s hearing, and there were contradictions between what the applicant said at the Board’s hearing and what was recorded in the hearing bundle. The Board was of the view that the applicant was not a reliable witness, and that his version of story was not believable. The Board found that the discrepancies in the applicant’s evidence were too numerous and impossible to be reconciled, rendering his evidence unreliable.

15.The Board did not accept the applicant’s claims, including the stated threats and assaults by his brothers-in-law and their people, and the fire incident that happened to the applicant’s shop. Furthermore, even if there were such threats as alleged, the Board found that the dispute and matters relating thereto were confined to the applicant’s local area. There was nothing in the evidence suggesting that the government of Bangladesh would help to cause any harm on the applicant or was indifferent to the alleged risk of harm. The Board did not find that the applicant’s brothers-in-law were so powerful and influential as claimed.

16.Despite its findings on the applicant’s credibility, the Board nevertheless assessed the applicant’s case by taking it at its highest and on the basis that his story was true to the extent that the stated threats had been issued towards him (see paragraphs 41 to 43 of the Board’s Decision). However, taking into account of the frequency, intensity and mode of past treatment from the brothers-in-law, the extent of injuries on the applicant, subsequent treatments and recoveries, the Board still found that such ill-treatment, whether physical or mental, inflicted upon him did not attain a minimum level of severity.

17.The Board also found that the applicant’s subsequent successful internal movements in Bangladesh and overseas trips indicated that the brothers-in-law were not as powerful as he claimed and that their abilities to locate him were not that strong. Moreover, the applicant had never insisted on the protection from the police or other public authorities in his country. It was out of his own volition not to report to the police about the fire incident and follow up with them or other authorities the assaults incident and the potential risk that the brothers-in-law made or would make against him.

18.The Board found that even if the applicant would be subjected to any real risk of harm, his problem with the brothers-in-law was limited to his local area. There was nothing and no solid evidence to support the claim that the brothers-in-law could search for him throughout the country.

19.Moreover, the Board did not accept that the applicant would not be accorded appropriate protection if there was a genuine need for him to seek protection after he returned to his country.

20.Given its findings that there was no real chance that the applicant would be harmed and that police protection would be available to the applicant in his home district, the Board considered that it was not necessary to assess the viability of internal relocation for the applicant. Nevertheless, the Board still explicitly gave its reasons in paragraph 59 of the Board’s Decision for its view that internal relocation was a viable option for the applicant.

21.Thus, the Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

22.The assessment of evidence, country of origin information and risk of harm was primarily within the realm of the Board in dealing with the applicant’s appeal/petition. 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.

23.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.

24.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

25.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 24424 Director of Immigration Putative interested party’s ref. no.: QA T/C 981/24 (Formerly RBCZ 50062/24) T4S14 Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)