MONDAL SHILPY ADURI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicants’ application by Form 86 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”) dated 31 December 2024, dismissing the 2^nd Applicant’s appeal against the decision of the Director of Immigration (the “Director”) in his notice of decision refusing his application for non-refoulement protection. 

2.  The 1^st Applicant (the “mother”) is the mother of the 2^nd Applicant (the “son”).  The mother had applied for non-refoulement protection for herself in March 2017.  Her application was refused by the Director.  Her appeal against the Director’s decision was dismissed by the Board on 3 July 2019.  Her leave application to review that decision was refused by Deputy High Court Judge Lung.  The present leave application is only related to her son.  The mother is just a nominal party for the purpose of representing the son and presenting his claim.

Legal representation for the 2^nd Applicant

3.  As the son is a minor, the mother representing him had been advised by this Court at an earlier hearing on 13 August 2025 of the requirements under Order 80 rule 2 of the Rules of the High Court that she must seek legal representation for the son so that his specific interest may be fairly put before the court.  She had been advised to seek legal representation from a private law firm or from the Legal Aid Department.  Their application was scheduled to be heard after three months to enable her to make the arrangements.

4.  However, at the resumed hearing the Applicants were unrepresented.  The mother said she had obtained a form from the Legal Aid Department a month ago and needed help to complete the form.  She had not even applied for legal aid.  She confirmed that she did not intend to seek private legal representation due to lack of funds.  She demonstrated no intention to prosecute her application for legal aid regularly.  Having regard to the underlying objectives stated in Order 1A rule 1 of the Rules of the High Court, in particular the need to ensure that a case is dealt with as expeditiously and as reasonably practicable and with a sense of reasonable proportionality and procedural economy, the Court explored with the mother as to her ability in representing her son.  She satisfied the Court that she had adequate knowledge about her son’s claim and the issues involved.  Having considered the applicable law, the issues raised, that both the mother and the son had been legally represented before the Director, that no new evidence would be advanced, and the 1^st Applicant’s expressed intention not to seek private legal representation, the Court was of the opinion that despite the absence of legal representation, the leave application may be justly determined without prejudicing the interest of the son.  The Court therefore considered the absence of legal representation a mere irregularity, which would not render the proceedings void and proceeded to hear their leave application.

The Applicants’ case

5.  The mother and son are Indonesian nationals, now aged 38 and 2 respectively.  The son was born in Hong Kong.  His father (the “father”) is a non-refoulement claimant from Bangladesh but is not married to his mother.  The mother and son are Roman Catholics.  Their personal background, the factual background leading to the present application, the basis of the son’s claim, the arguments advanced on his behalf, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, his claim is that, if returned to Bangladesh, he will be harmed or killed:

(1)   by Mahibur Rahman (“Mahibur”), a Muslim fanatic and member of the Awami League (the “AL”) because her mother had made evil reports against him in the newspaper and also because the son was born out of wedlock;

(2)   by the Bangladeshi police because of a murder case against the mother relating to Mahibur;

(3)   by Muhammad Eunuch (“Eunuch”), his mother’s ex-boyfriend for giving birth to him with another man;

(4)   by Mukta Akhtar (“Mukta”), Eunuch’s wife because he was born out of wedlock;

(5)   by the Proshenjit’s family and their people (Proshenjit is the husband of the mother’s sister) for bringing disgrace to the family by her mother giving birth to children of two different men out of wedlock;

(6)   by Runa Akter (“Runa”), his father’s wife because he was born out of wedlock;

(7)   by other religious fanatics because he was born out of wedlock;

(8)   by Babul Master (“Master”) his father’s cousin and an AL leader because of their land dispute; and

(9)   by Master’s three brothers for the same cause as Master’s.

In addition, the mother raised concerns about the son’s medical needs, the discrimination he would face, his opportunities to receive a proper education and the assistance he could obtain from non-governmental organisations (“NGOs”) as an illegitimate child born to parents of Christian and Islamic faith.  His father also raised concerns that he will be harmed or killed by other religious fanatics and will face legal actions filed by Runa.

The Board’s finding

6.  The centrepiece of the son’s claim is that he will be harmed or killed, if returned to Bangladesh, by his mother’s enemies and his father’s enemies because he was born out of wedlock. In addition, he feared that his life may be at risk due to lack of medical care for his congenital conditions in Bangladesh and that he will suffer discrimination generally and in terms of education and welfare needs which he could not receive from NGOs because he is an illegitimate child born to parents of mixed religious faith, ie Christian and Islamic faiths.  However, the Board found, except for his congenital conditions, that his claim is only made up of bare assertions and hearsays from his mother’s sister and not supported by any objective evidence.

7.  The Board found the mother’s conduct in posting her son’s photographs online and leaving comments, despite her fears of harm from her enemies, Mahibur and the villagers a contradiction in her stated concerns which raised questions about the veracity of the son’s claim.

8.  Eunuch left the mother in 2019.  Their last contact was in April 2023 when she was pregnant with the son. Then Eunuch blocked her contact after learning about her pregnancy.  The Board considered Eunuch’s conduct suggested a lack of sustained animosity or intent to harm the mother and the son.  It found the mother’s fear of harm by Eunuch speculative.  His mother’s last contact with Mukta was in 2020 or 2021 well before the son’s birth.  The Board considered the lack of direct interaction or conflict between the mother and Mukta since 2020 or 2021 and Eunuch’s blocking the mother’s contact since 2023 undermined the plausibility of the alleged threat from Mukta.  It found the Applicants’ fear from Eunuch and Mukta unfounded and based solely on speculation.

9.  According to the mother, Mahibur’s grudge against her began when she reported his evil acts in the newspaper in 2014 and stabbed him on Easter Sunday in 2015.  Yet, she successfully stayed in a training centre for a few months, obtained a passport and left Bangladesh on the strength of her passport through proper immigration channel.  The Board considered the absence of any law enforcement pursuits against the mother cast doubt on the existence of Mahibur and the grudge. It render her allegation about police visit to her grandfather’s house after her departure to inquire for her whereabouts dubious.   It is also inconceivable that the police would charge his mother for murder because according to the mother Mahibur was still alive.  In the absence of any indication that Mahibur was aware of the son’s specific details, it would be challenging for Mahibur to identify and target him.  Besides, there is nothing to suggest that the mother would be deprived of the protection under the due process of the law in Bangladesh, including a fair trial.  Hence, the Board found the Applicants’ fear of harm from Mahibur lacked credibility.

10.  The mother asserted that the Proshenjit family blamed her sister for bringing disgrace to their family because of her having two children with two different men out of wedlock.  But there was nothing to show that the Proshenjit family had ever expressed any blame, hostility or animosity towards the mother.  The Board therefore considered this fear speculative.

11.  As for the father’s concern about Master and his brothers harming the son, the father confirmed that he had never told his enemies about the son’s birth.  There was no indication that his enemies was aware of his existence or have threatened to harm him.  As for the father’s fear that Runa would harm the son, it is the father’s evidence that Runa was outraged and threatened to kill him, the mother and the son upon learning he had developed another relationship and had a new born son.  But there was no evidence that Runa actually possessed the means or the intent to harm or kill a new born baby such as the 2^nd Applicant.  As for his fear that Runa would take legal action against him for adultery, there was also nothing to show that Runa had taken any legal action against him.  The Board found the father’s fear of harm and legal action from Runa were all speculative. 

12.  As for the mother’s and father’s concern that both Christians and Muslims in Bangladesh would harm the son because he was born out of wedlock and an interfaith relationship, it was all based on speculation unsupported by any objective evidence.  The mother could not identify specific names among the Muslims who might be targeting the son.  Neither the father nor the mother had provided any specific instances or credible threats from individuals within these communities. 

13.  As for the 2^nd Applicant’s congenital condition arising from his undescended testicle, his mother’s evidence is that she did not need to use any medical equipment for him when taking care of him. She was advised that if at the end it did not descend, a surgery would be required and that it is a treatable condition that can be managed in Bangladesh. According to country of origin information (“COI”), Bangladesh had made efforts to provide free medical care for children, particularly those from poor families.

14.  As for the mother’s and father’s concern about discrimination, the COI indicates that there is a legal framework in Bangladesh to protect the child’s right to education and prohibits discrimination.  The Board did not accept that the son would be deprived the opportunity to receive proper education or assistance from NGOs as claimed.  It considered his parents’ concerns seemed to be based more on hypothetical scenarios and assumptions rather than concrete evidence.  In any event, it found discrimination did not constitute persecution.

15.  In conclusion, the Board found there was no evidence of threat by the mother’s or the father’s enemies and did not accept the son would be at risk of being harmed or killed as his parents suggested. It repeated its finding in relation to the mother’s and father’s non-refoulement claims, including that their enemies were non-state actors, that their disputes with their enemies originated from private disputes between them and their enemies, that the injuries they suffered fell short of the requisite severity, that his parents had not reported the threats to the police at higher level or other government authorities for protection.  It found there was no evidence that any public official or persons able to wield the authority of the government and/or state had any connection with this claim or even knew about the mother’s and the son’s plight, let alone acquiesced in the ill-treatment of the son and his parents; that his parents’ enemies had ill-treated them and the son with an intention listed in the definition of ‘torture’ under section 37U(1) of the Immigration Ordinance; that the alleged ill-treatment of the parents and the son, if any, had any relevance to the interest and/or benefit of the government of Bangladesh; that the parents and the son had a well-founded fear of persecution for one or more of the reasons enumerated in the 1951 Convention relating to the status of Refugees and its 1967 Protocol; and that the state of Bangladesh was unwilling or unable to afford protection to them for a Convention reason or for any other reason.

16.  Applying the law applicable to non-refoulement protection to the facts it found, the Board came to the conclusion that the mother had failed to prove the son’s entitlement to protection under any of the applicable grounds under the Unified Screening Mechanism (“USM”).  Hence, it dismissed their appeal against the decision of the Director in his Notice.

Legal principles applicable to judicial review

17.  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[2].

Grounds for judicial review

18.  The mother did not advance any grounds of review in the leave application.  At the hearing, after the legal principles in the preceding section had been explained to the mother, she confirmed that she had no complaint about error of law, procedural unfairness and irrationality.  She submitted that the hearing before the Board was short.  It lasted about 15 minutes and the Board had asked her one question only.  It did not ask what problems the son may face on his return to Bangladesh.  She said she was confused and did not tell the Board her problems.  

19.  In view of the seriousness of her allegations made against the conduct of the hearing by the Board, the Court called for the audio recording of the hearing.  The Court heard the recording.  The hearing was short.  It lasted for 21 minutes.  The Board did not ask the Applicant one question just.  Whether a claimant had a fair hearing is not to be measured by the length of the hearing, but whether she was able to fairly and fully present her case and whether the decision maker adequately assisted her to establish her claim in the discharge of its duty of joint endeavour.

20.  The Board opened the hearing by explaining the procedure to the mother and then asked six lines of questions.  It asked her about her case and then the 2^nd Applicant’s case.  She highlighted the fact that she was not married to the 2^nd Applicant’s father, that the son was therefore born out of wedlock which was unacceptable to the Bangladesh culture.  After she finished, the Board asked if that was the only problem the son had.  She brought up the issues about his religion and schooling etc.  Then, the Board reverted back to her case and discussed details about the incident on Easter Sunday, her mother’s death, the court case against her and the murder charge.  Obviously, the Board had made adequate preparation for the hearing, read the papers and asked what it considered necessary.  There are many issues of fact which the Board had not asked such as the son’s medical condition and need for treatment.  These were considered in the Decision on the basis of documents submitted by the mother, her non-refoulement claim form and her submissions.  What transpired at the hearing is reflected in the forty-one page Decision.  The hearing was short, but it covered all the issues raised in the son’s claim.  The Court could find no evidence, not even suggestions of procedural unfairness or irrationality in the Decision.  The mother’s accusation that the Board asked only one question in a short hearing is false.

21.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

Overall scrutiny

22.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  Since the son’s claim is hinged on his mother’s claim and the credibility of his father’s evidence, the Board assessed the mother’s claim and the father’s evidence.  The Court was satisfied that the Board had assessed the son’s claim separately from that of his mother’s.  As the recording shows, the Board asked the mother specifically about the son’s case.  The Board focused it consideration on the son’s fears, harm and risks of harm.  The son’s claim and the mother’s concerns about the son safety, harm, risks and discrimination are fully reflected in the Decision.  The Board paid special attention to the personal circumstances of the son in view of his religion and status as an illegitimate child born out of wedlock and a mixed-faith relationship. 

23.  The Board analysed the evidence carefully, tested it against common sense, inherent consistency, inherent probability and against authoritative and credible COI.  It gave full reasons for its evaluation of the evidence and subsequent finding.  It was on that basis that the Board found the son’s claim is based on the mother’s and father’s speculation and is not supported by any objective evidence.  Hence, it found the mother had failed to establish the factual basis to support the son’s claim for non-refoulement protection under any of the applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

24.  For the above reasons, the Applicants’ leave application is refused.

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