ABUL HASHEM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2727/2019

[2025] HKCFI 4061

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2727 of 2019

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 the Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 17 September 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 5 September 2019 (the “2019 Decision”), dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Further Decision dated 8 February 2017 (the “Further Notice”) refusing his application for non-refoulement protection under BOR 2 Risk ground.

2.  The Applicant is a Bangladeshi national. His personal background, the factual background leading to the present application, the basis of his claim and the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below [1] for reference. In gist, he claims being a supporter of the Awami League (the “AL”) political party, he will, if returned to Bangladesh, be harmed or even killed by supporters of the Bangladesh Nationalist Party (the “BNP”), an opposition party, for failing to pay extortion money demanded by them in connection with his operation of his father’s rickshaw business in Comilla in 2007.

3.  The Applicant entered Hong Kong illegally on 7 May 2007. He was arrested and then made a non-refoulement claim on 9 March 2008. His claim was assessed on three applicable grounds then available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[2] ; BOR 3 Risk[3]; and Persecution Risk[4]. His claim was rejected by the Director by his Notice of Decision dated 29 September 2014 (the “Notice”). His appeal against that Notice was dismissed by the Board’s decision dated 18 August 2016 (the “2016 Decision”).

4.  On 28 December 2016, the Director invited the Applicant to submit additional information, if any on or before 11 January 2017, which he considered relevant to his claims on all applicable grounds, specifically including BOR 2 Risk[5] ground. The Applicant did not respond. Then, the Director issued the Further Notice rejecting his claim under BOR 2 Risk ground. The Applicant appealed the Further Notice. His appeal was dismissed by the Board’s 2019 Decision. He now seeks leave to apply for judicial review of that 2019 Decision.

5.  The Applicant had requested an oral hearing and an oral hearing at 10:30 am on 20 August 2025 was scheduled for him. The notice of hearing was sent to him by post on 8 August 2025 to his addresses as stated in the Form 86 and to his latest address as discovered from the Immigration Department about six weeks ago. On the morning of 13 August 2025, a court staff successfully contacted him to remind him of the hearing on 20 August 2025 and informed him that the hearing was rescheduled to 2:30 pm in the afternoon on the same day due to non-availability of interpreter. He replied “OK”. However, he did not appear. A court staff successfully contacted him that afternoon to check if he was coming to the hearing. He said he was not as he thought the hearing was to be held on the following day. The staff urged him to attend as the Court could defer the hearing of his leave application to the late afternoon. He refused. In a last attempt to urge him to attend the hearing, the staff called him again, but he did not answer the call.

6.  The Applicant had been duly served the notice of hearing and verbally reminded on 13 August 2025 of the date of hearing. At the time, he did not raise the point that he thought the hearing was to be held on 21 August 2025. It was only when the court staff called him on 20 August 2025 and enquired about his absence that he first raised the excuse that he thought the hearing date was on the following day. He had been properly informed of the date and time of hearing. He had been informed by the notice of hearing that if he does not appear at the hearing, the Court will deal with his application according to the paper already placed before the Court. He did not seek an alternative hearing date if he could not attend that afternoon. Even if he had forgotten about the hearing, the court staff was able to reach him and urged him to attend. He was informed that the Court would defer the hearing to wait for him. The Court was prepared to accommodate his late attendance, but he refused to attend. He gave no explanation for not appearing and chose to cutting off communication with the court staff. The Court’s resources in terms of time, staff costs and interpreter’s costs were unnecessarily wasted. 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 and having also considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered the leave application may be justly determined on paper without an oral hearing.

Grounds for judicial review

7.  In his Form 86, he advanced in paragraph 8 of an annexed document titled “Grounds On Which Relief Is Sought” the following four grounds of application:

(1)  the Board unlawfully fettered its discretion by refusing his appeal on the grounds that he did not meet the requirements;

(2)  the Board acted in a procedurally unfair manner in dealing with his appeal;

(3)  the Decision was unreasonable or irrational in the public law sense or is a result of procedural error or unfairness; and

(4)  the Board failed to meet the greater care and duty owed to him as an unrepresented claimant.

Furthermore, in his supporting affirmation, he made the following complaints in paragraphs 5 to 15 under the heading “Factual Background and Chronology” which may be regarded as grounds of application:

(5)  he was not legally represented in his appeal before the Board;

(6)  the 2019 Decision was made without an oral hearing;

(7)  he filed the Notice of Appeal against the Further Notice late because he received the Further Notice late;

(8)  he was not even served with the hearing bundle for the appeal;

(9)  the Board ignored his request to notify him of the Decision by phone;

(10)  the Board relied on source of news which is not officially recognized or is hearsay;

(11)  the Decision relating to his BOR 2 Risk claim was made without a screening interview; and

(12)  the Decision was reached wrongly without any proper inquiry and careful understanding of his situation.

There are other frivolous grounds raised in these two documents which are in essence challenges against the Board’s finding of fact, which are impermissible in a judicial review. Those grounds would not be considered here.

Ground (1)

8.  The Applicant advanced no evidence or argument in support of Ground (1) and forewent his opportunity to do so by deliberately not attending the hearing. Having scrutinised the Decision, the Court is satisfied that the Board had made finding of facts which supports its finding that the Applicant is not entitled to protection under any of the applicable grounds under the Unified Screening Mechanism (the “USM”). There is nothing to support the Applicant’s claim that the Board had fettered its discretion to dismiss his appeal.

Grounds (2) to (4) and (10)

9.  These grounds are missing in particulars. The Applicant forewent his opportunity to perfect these grounds by deliberately not attending the hearing. These grounds could not be considered for want of particulars.

Ground (5)

10.  The Applicant complained that he was not legally represented at the appeal hearing which led to the 2019 Decision. The high standard of fairness requires that a claimant for non-refoulement protection must be provided with adequate legal assistance. But that high standard does not require that he be provided with legal assistance throughout all the non-refoulement proceedings. It was held by the Court of Appeal in Re Zafar Muazam[6], Re Zunariyah[7], Re Zahid Abbas[8], Re Tariq Farhan[9], and Re Lopchan Subash[10], that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar[11] nor in the judgment of FB v. Director of Immigration[12] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. The extent of assistance depends on the individual circumstances, such as complexity of the case in terms of fact or the law; and whether minor claimants are involved. Usually, the high standard is attained if the claimant is provided with legal assistance at the initial stage which is the most important stage of the non-refoulement process. It includes an initial consultation during which the law relating to non-refoulement protection is explained to the claimant and instructions are taken from him as to the facts of his case, assistance in the completion of the non-refouleement claim form and legal representation at the screening interview. During the screening interview, the claimant participates in the joint endeavour with the immigration officer in establishing his claim for protection and his legal representative presents his claim to the immigration officer and makes submissions on the law and the fact on his behalf. Thereafter, legal representation in the appellate proceedings are of less importance for this purpose because all benefits that legal assistance and legal representation could have afforded the claimant are contained in the written submissions, the NCF and answers in the screening interview given under legal advice. His interests are taken care of by an independent board, the law and the high standard of fairness. Unless the legal representative advises appeal, the legal assistance stops. In view of the limited resources available, legal assistance could only be provided with reasonable proportionality. Public funds could not provide legal assistance for subsequent appellate proceedings which the claimant’s own legal representative does not recommend. The high standard of fairness is deem attained under such circumstances. If the claimant wishes to proceed further, he may do so on his own and at his own costs.

11.  There is no evidence to suggest the standard practice of providing claimants with legal representation by the Duty Lawyer Service (the “DLS”) in the preparation of his non-refoulement claim form (the “NCF”) and during the screening interview had not been followed in the procedures leading to the making of the Notice. As indicated in the Notice, the Notice was sent to the Applicant care of the Duty Lawyer Service, it is obvious that he was represented by the DLS at the screening interview. He had legal representation at the initial and important stage of the non-refoulement process. All benefits that legal assistance and legal representation could have afforded the Applicant which were before the Board when it made its 2016 Decision were also before the Board when it made the 2019 Decision. As the Applicant gave no additional information to support his claim under BOR 2 Risk ground, he suffered no real prejudice due to lack of legal representation in relation to his claim under BOR 2 Risk grounds, whether before the Director or the Board.

Ground (6)

12.  The Applicant said that the 2019 Decision was made without an oral hearing. As was stated on the first page of the 2019 Decision, the determination was made without a hearing pursuant to paragraph 15 of the Principles, Procedures and Practice Directions of the Torture Claims Appeal Board[13] (“Practice Directions”). Section 12 of Schedule 1A to the Immigration Ordinance gives the Board discretion to determine an appeal without an oral hearing, if having regard to the material before it and the nature of the issues raised, it is satisfied that the appeal can be justly determined without an oral hearing.

13.  Where a legislation confers an administrative power there is a presumption that this power will be exercised in a manner which is fair in all the circumstances. It is trite principle that high standards of fairness must be observed by a decision-maker when assessing a non-refoulement claim where life and limbs of the asylum seeker are in jeopardy and his fundamental human right not to be subjected to torture is involved: see Secretary for Security v Sakthevel Prabakar[14]. As was held by Lord Mustill in Secretary of State for the Home Department, ex p Doody[15], what fairness requires is essentially an intuitive judgment. The standards of fairness are not immutable. Very often, fairness will require that a person who may be adversely affected by the decision will have an opportunity to make worthwhile or effective representations on his own behalf. This principle is incorporated in paragraph 8 of the Practice Directions.

14.  Paragraph 8.1 states that the purpose of holding an oral hearing is not only to assist the Board in its decision-making, but also to reflect the appellant’s legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute. Paragraph 8.3 recognises that an appellant has no absolute right to an oral hearing, but stresses the importance of affording him the opportunity to make worthwhile or effective representation as part of the requirement of fairness in such a decision-making process.

15.  Paragraph 8.4 mentions the presence of material factual dispute which cannot be decided on paper as an example when an oral hearing is called for. It reminds the Board that the converse is not necessarily true. Depending on the circumstances, even when all facts are agreed, the high standard of fairness would require the holding of an oral hearing. The paramount consideration is to achieve a just decision.

16.  Paragraph 8.5(a)(ii) reminds the Board that the high standard of fairness requires the Board to draw the appellant’s attention to matters that obviously require clarification or elaboration so that they can be addressed by the appellant, but there is no duty to keep on probing or inquiring where the objective circumstances make it reasonably clear that the appellant and those representing him are aware of what he has to show and has already produced or mentioned all that he wants to show.

17.  Paragraph 8.5(b) emphasises the need to give the appellant an opportunity to be heard orally or in further writing where the Board considers there is anything which is material to the determination of the appeal and which the high standards of fairness requires. The Board should take the most effective and fairest way to approach the concern in question. Examples where an oral hearing or further written representations are required include where there is any point, factual or legal, on which the Board is not sure; or which has not been dealt with adequately or at all; or the materials placed before the Board calls for some further probing, questioning or inquiry, particularly if the absence of such further probing, questioning or inquiry would lead to the Board drawing an inference adverse against the appellant.

18.  Thus, an appellant does not have an absolute right to an oral hearing. The paramount consideration is whether a just decision could be achieved without an oral hearing. The most important factors in determining whether this could be achieved are, firstly, whether the appellant had the opportunity to make worthwhile or effective representation in relation to his claim and, secondly, whether there are material factual issues which cannot be decided without an oral hearing. However, the Board has no duty to keep on probing or inquiring if it is reasonably clear that the appellant is aware of what he has to show and has already produced or mentioned all that he wants to show or does not wish to avail himself of the opportunity to do so.

19.  Here, on the fact, the immigration officer had invited the Applicant to furnish additional evidence or information, but the Applicant failed to avail himself of the opportunity. The Board had heard the appeal before and made finding of facts in relation to the Applicant’s claim under the other three applicable grounds in its 2016 Decision. That decision is now final. In that decision, it found the Applicant not wholly truthful. Except for one factual issue, it assessed the Applicant’s claim on the basis of the factual case as he asserted. It accepted that he had been the subject of attempted extortion by local BNP supporters when he was running his father’s rickshaw business in Comilla in 2007. The only factual issue it did not accept is that so many years after his business had closed down, those local miscreants would now seek to seriously harm him if he returned to Bangladesh, particularly if he lived away from his home area. These finding of facts in the 2016 Decision are final. Thus, there are no material factual issues in dispute. The Applicant had been invited to furnish additional evidence or information but he did not provide any. He had been given the opportunity to make worthwhile representation, but he did not avail himself of the opportunity. In the circumstances, there is no duty on the Board to keep probing. This Court is satisfied that a just decision could be achieved without an oral hearing. The Board could not have erred in exercising its discretion not to hold an oral hearing. There is no error of law, procedural unfairness or irrationality in the exercise of its discretion.

Ground (7)

20.  The Director issued the Further Notice on 8 February 2017. It was not until 24 July 2017 that the Applicant filed his Notice of Appeal. The Applicant argues that he had not been late in appealing the Further Notice. However, the Board took no issue with the late filing of the Notice of Appeal. It accepted his explanation for the delay and accepted his late filing of the Notice of Appeal. This ground could not be a valid ground.

Ground (8)

21.  The Applicant complained that he was not even served with a hearing bundle. That was not necessary as the Board found the appeal could be justly determined without an oral hearing.

Ground (9)

22.  As for his complaint that the Board ignored his request to notify him of the outcome of the Decision by phone, it is difficult to see how and why the Board’s refusal to provide him with that convenience could support a complaint of error of law, procedural unfairness or irrationality in the Decision. The Decision having been made, whether the Board explains it to the claimant could not have changed its Decision.

Ground (11)

23.  The burden of proving his entitlement to protection is on the Applicant. The purpose of the screening interview is to enable the Director to help the Applicant to establish his claim in a joint endeavour. The non-refoulement claim form provides the starting point of this joint endeavour. From the Director’s Notice, it is amply clear that the immigration officer had conducted one screening interview in which he explored the Applicant’s grounds of claim with him under all applicable grounds under the USM. As the Applicant provided no additional information or evidence, there was no particular purpose to serve by holding another interview in respect of BOR 2 Risk ground. The Board took the same view. It held in paragraph 23 of the 2019 Decision that “in the absence of any other additional supporting facts or information from the [Applicant], the Board decided that it was not necessary to hold another hearing.” The “hearing” refers to an oral hearing before the Board and not a screening interview before an immigration officer, but would serve the same purpose, ie a joint endeavour to help the Applicant to establish his claim.

Ground (12)

24.  The Applicant argued that the Decision was reached wrongly without any proper inquiry and careful understanding of his situation. He “invited” the immigration officer to visit his home country for a proper understanding of his situation. It is not practicable for the Director to send his immigration officers to the home country of any non-refoulement claimant to “understand” his situation. The realistic and practicable means to find out about the Applicant’s situation would be to study the country of origin information (“COI”) available from authoritative and credible sources and to conduct the screening interview with the Applicant. These were what the Board had done. The Applicant’s ground is a direct challenge of the finding of fact by the Board, which is not permissible, save for errors of law, procedural unfairness and irrationality in the 2016 Decision or the 2019 Decision.

Overall scrutiny

25.  None of the grounds advanced by the Applicant has substance. 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.

26.  Having rigorously examined the Decision, the papers 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 four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard.

27.  The Applicant did not produce any additional information or evidence in support of his claim under BOR 2 Risk ground. The Board’s 2016 Decision and its finding of fact under that Decision are final. Having regard to all of the above and to the COI, Article 2 of the Hong Kong Bill of Rights Ordinance, it was satisfied that the Applicant had failed to establish a personal and real risk of his absolute and non derogable rights under the HKBOR including his right to life under BOR 2 being violated. These are mixed finding of law and of facts. Insofar as these are finding of the law, they are absolutely correct. Insofar as these are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. 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.

Conclusion

28.  For the above reasons, the Applicant’s 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