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HCAL 3415/2019
[2025] HKCFI 4085
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3415 OF 2019
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BETWEEN
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Anisur Rahman |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
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:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.
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 2019, 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 30 October 2019 (“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/2019/HCAL003415_2019_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the decision of the Director of Immigration (“the Director”) dated 31 August 2018 (“the Director’s Decision”) was confirmed.
3. Both the Board’s Decision and the Director’s Decision were dealing with the applicant’s BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3], but Torture Risk[4] was not assessed.
4. The applicant made a CAT claim[5] previously on 26 August 2011, which was rejected by the Director on 28 September 2011. The Petition Team of the Security Bureau rejected the applicant’s petition against that refusal on 4 November 2011. Thus, the Torture Risk of the applicant had been finally determined and it was not necessary for the Board to re-assess the applicant’s Torture Risk again.
Amendments
5. In Form 86, the applicant named both the Board and the Director as the putative respondents and the Board as the putative interested party but spelt the Board’s name wrong. In fact, only the Board should be the putative respondent and the Director should be the putative interested party.
6. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended 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 he would be killed by terrorists who extorted money and kidnapped people if he were to return to Bangladesh. The terrorists killed the father of Lutfer because he was unable to pay them. In his Notice of Appeal to the Board, the applicant further claimed that he was an activist of the Bangladesh Nationalist Party and that he participated in many political activities, for which he was threatened with death by the Awami League.
Oral hearing
9. The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 26 June 2025.
10. As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn his request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.
11. Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.
Grounds for judicial review
12. 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).
13. In the written document attached to his Form 86, the applicant asserted some grounds for his intended judicial review, which can be summarised as follows:-
(1) The adjudicator had unlawfully fettered her discretion by refusing the applicant’s appeal on the ground that he did not satisfy the requirement.
(2) The adjudicator acted in a procedurally unfair manner in dealing with the applicant’s appeal.
(3) The adjudicator’s decision to refuse the applicant’s appeal was unreasonable or irrational in the public law sense or was a result of procedural errors or unfairness.
(4) The adjudicator failed to meet the greater care and duty owed to a self-represented claimant.
(5) The applicant was unrepresented at the appeal hearing on 8 May 2019.
14. In his supporting affirmation dated 18 November 2019, apart from setting out the factual background of his case, the applicant further asserted that after the Director had issued a letter to him with the hearing bundle, there was insufficient time for him to prepare the hearing due to the short time and his skills in English.
Discussion
15. The first 4 grounds as summarised above are all very general without any specificity. The applicant failed to identify how the Board had unlawfully fettered its discretion, what was procedurally unfair to him, how it failed to meet the greater care and duty owed to a self-represented claimant and why the Board’s Decision was unreasonable or irrational.
16. 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”. Thus, none of the aforesaid grounds could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.
17. Ground (5) concerns the lack of legal assistance. In fact, the applicant also asserted in Form 86 that he did not have the benefit of legal representation when Form 86 and the grounds on which relief is sought were prepared. However, a lawyer from the Duty Lawyer Service did assist the applicant in his proceedings before the Director.
18. The Court of Appeal has repeatedly emphasised that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37). Thus, there is no substance in this allegation.
19. As to the ground that the applicant did not have enough time to prepare for the appeal before the Board, this court notes that the applicant filed his Notice of Appeal/Petition to the Board on 10 September 2018 and the hearing before the Board was held on 8 May 2019. The applicant had about 8 months to prepare for the appeal.
20. The hearing bundle contained the applicant’s CAT claim materials, the applicant’s Supplementary Claim Form dated 7 August 2018, the record of interview conducted on 21 August 2018, the Director’s Notice of Decision dated 31 August 2018, the applicant’s Notice of Appeal and the country of origin information. The applicant should have all these materials before the hearing bundle was served on him and he could have prepared his case even without the hearing bundle.
21. As to his assertion regarding his limited skills in English, this court notes that all the documents filed by the applicant in relation to the Leave Application were handwritten in English. It indicates clearly that the applicant is either familiar with the English language or he has access to such language assistance if needed. The applicant cannot claim that he has been prejudiced at all. It is trite that the high standards of fairness required by law would not entail interpretation service being made available at any time the applicant desires (see Re Gurnishan Singh [2018] HKCA 704 and Re Gurung Sagar [2019] HKCA 658).
22. It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.
23. 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).
24. Thus, despite that the applicant has failed to establish any valid ground as aforesaid, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
25. In assessing the applicant’s petition, the Board held an oral hearing on 8 May 2019 and the applicant was present. Thus, the applicant did have a chance to present his case to the Board in person.
26. The Board had taken into consideration the applicant’s limited education and the passage of time (which was more than a decade since the claimed event happened) and thus acknowledged that the applicant might not have an accurate recall of the events that led him to seek protection. Despite that, the Board found several significant discrepancies and implausibilities remained.
27. First, the Board found that the “terrorists” that the applicant referred to were from a criminal gang outside his village who came to his village every 10 to 15 days to extort money. The applicant was inconsistent with the sequence of events, namely the letters from the extortionists and the death of Lutfer’s father. More significantly, the applicant was inconsistent with whether he had met the extortionists in person and the amount of money demanded of him.
28. The Board gave little weight to the two handwritten letters allegedly from the extortionists to the applicant to demand money. The applicant admitted that he did not know who signed these letters. Moreover, the statement that was signed by more than 40 individuals including allegedly the “Advocate judge court” in Meherpur and the Chairman of “No 3 Bagowan Union Council” in support of his claims was incredible.
29. The applicant was inconsistent with whether anyone apart from Lutfer’s father was harmed. The applicant previously stated that Lutfer’s wife was assaulted and raped, but he told the Board that no one apart from Lutfer’s father was harmed. As these were actually the basis of his fear, the Board doubted whether the applicant was providing an account of events he actually experienced.
30. Although the Board had serious concerns as stated above, it nevertheless took the applicant’s case to its highest in making its assessment of his risks. The Board accepted that the applicant might have been targeted for extortion on two occasions by an unknown criminal gang, and Lutfer was demanded a much larger sum which Lutfer failed to pay, resulting in the murder of Lutfer’s father.
31. The Board, however, found the lengthy passage of time since the applicant left Bangladesh and the very limited time that the applicant appeared to have been of interest to the group all led the Board to conclude that the applicant’s claimed fear at the time of the Board’s Decision far-fetched and lacking in plausibility.
32. The Board discussed with the applicant his threat from the Awami League because of his political affiliation as stated in his Notice of Appeal. The applicant admitted to the Board that the Notice of Appeal was prepared by a friend and he had no knowledge of its content. Given the applicant’s illiteracy, the Board accepted the applicant’s explanation and gave no weight to the content of the Notice of Appeal.
33. The Board went on to discuss and examine the viability of internal relocation for the applicant and rejected the applicant’s assertion that the extortionists’ network was everywhere in Bangladesh. Despite the lack of education, the applicant had experience in running a relatively successful cloth business. It was viable and not unduly harsh for the applicant to relocate to cities such as Dhaka or Chittagong which offered greater employment opportunities should he wish to do so to avoid any perceived risks.
34. The Board thus found that the applicant had no real risk of any of the proscribed forms of harm on any of the applicable grounds under the USM, and concluded that the applicant was not entitled to non-refoulement protection.
35. The finding of facts was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
36. 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.
37. 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
38. For reasons aforesaid, the Leave Application is dismissed.
Dated the 9th day of September 2025
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( Irene LEE )
for Registrar, High Court
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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:
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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)).
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Sent/Handed to the applicant/the applicant’s solicitors
on: 9 September 2025
Applicant’s ref. no:
Nil |
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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:
9 September 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 21979
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 506/23
(formerly as RBCZ 5000452/23)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
[4] Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[5] CAT is the abbreviation for the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Claims for non-refoulement protection under Article 3 of CAT used to be handled by the Immigration Department under an administrative screening mechanism prior to the implementation of the statutory scheme under Part VIIC of the Immigration Ordinance, Cap 115.
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