FARHAD MOHAMMAD ABDUL KARIM v. TORTURE CLAIMS APPEAL BOARD

HCAL 2146/2020

[2025] HKCFI 6168

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2146 OF 2020

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;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 5 October 2020”.

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 27 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the following:-

“The decision made on unknown date but notified to Applicant on 23 day of October 2020.

The decision of the torture claims appeal Board/ Adjudicator, made on 05 day of October 2020 dismissing the Appeal by ruling that the Applicant fails to establish a case for Non-refoulement whether under the principles of Torture or BOR 2 or BOR 3 or Prosecution. (The Decision).”

2.  The Torture Claims Appeal Board (“the Board”) made a decision on 5 October 2020 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 26 November 2018 (“the Director’s Decision”).

3.  At the oral hearing before this court on 13 November 2025, the applicant confirmed that the Leave Application was in respect of the Board’s Decision only. The Board’s Decision can be viewed in the following hyperlink:-

 https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002146_2020_files/the_Board's_Decision.pdf

4.  The Board found that the applicant had failed to establish a case for non-refoulement on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board dismissed the applicant’s appeal/petition and confirmed the Director’s Decision.

Amendments

5.  In Form 86, the applicant named “WONG Chun-nam, ESQ., Torture Claims Appeal Board, Formerly an Adjudicator appointed by the Secretary for Security as an Adjudicator (Torture Petitions) delegated by Chief Executive of the HKSAR to determine petitions to the Chief Executive pursuant to Art. 48(13) of the Basic Law for protection under Article 3” as the putative respondent.

6.  Mr Wong was in fact making the Board’s Decision on behalf of the Board in his capacity as a member of the Board. Hence, the putative respondent in the Leave Application should be the Board instead.

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

8.  As aforesaid, the decision in respect of which relief is sought should be “Torture Claims Appeal Board’s decision dated 5 October 2020”. Thus, on this court’s own motion, it is so amended.

The applicant’s case

9.  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.

10.  In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, he would be subjected to false accusations by the police, harmed or killed by members of the Bangladesh Chhatra League (“BCL”), the student wing of Awami League (“AL”), due to his role in the Bangladesh Islamic Chadra Shibir Party (“BICS”), the student wing of the Jamaat-e-Islami Party (“J-e-I”).

Oral hearing

11.  The applicant requested for an oral hearing of the Leave Application but he was late at the hearing scheduled on 23 September 2025. As the Bengali interpreter had left, the hearing was adjourned to a date to be fixed.

12.  At the resumed hearing on 13 November 2025, when this court asked the applicant to elaborate on the grounds for his intended judicial review as laid out in a document with the title “GROUNDS ON WHICH RELIEF IS SOUGHT” annexed to his Form 86 and in his supporting affirmation dated 27 October 2020, he said that he could not remember what were written there.

13.  After the documents were translated to him by the interpreter, the applicant told this court that the Board did not follow the law properly, he did not have enough time to prepare for the appeal, he did not have any legal assistance in the appeal proceedings and hence the procedures were unfair to him. As these were all mentioned in the applicant’s Form 86 and his affirmation, he did not in fact elaborate on any of those general grounds. The applicant then asked this court to reconsider his claim, as he had his family here and it was not safe for him to return to Bangladesh.

Grounds for judicial review

14.  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).

15.  The applicant annexed a document to Form 86 with the title “GROUNDS ON WHICH RELIEF IS SOUGHT”, which contained some general grounds for the intended judicial review. Further, the applicant asserted some more grounds in his supporting affirmation dated 27 October 2020, which basically complained about the lack of legal assistance and language assistance, and the lack of time for preparation of his appeal.

16.  The contents as stated in the above-mentioned documents were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It seems that the applicant had combined these standard grounds and used them without any regard to his own situation. Nevertheless, as the applicant is relying on those grounds to make the Leave Application, this court will still deal with the grounds as discussed below.

17.  As aforesaid, the applicant failed to elaborate on any of the grounds stated in those two documents at the oral hearing on 13 November 2025.

Discussion

18.  The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, 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”.

19.  Thus, the general assertions put forward by the applicant, which merely contained “key words” such as the Board’s Decision was wrong, unreasonable and irrational, or that there were procedural errors or unfairness cannot help the applicant at all.

20.  His accusation that he was not given enough time to prepare for the appeal is totally unfounded. This court notes that he lodged his non-refoulement claim in May 2015. After the Director rejected his claim, he filed his Notice of Appeal/Petition to the Board on 10 December 2018 against the Director’s Decision. His case was heard by the Board on 22 October 2019. Clearly, he had more than 4 years and 5 months since he lodged his non-refoulement claim to prepare or get any documents in support of his claim. Even if the time was counted from the time the Director’s Decision was made, he still had more than 10 months for his preparation of the appeal to the Board. This court notes that the applicant had asked the Board for time to submit additional documents and his request was acceded to by the Board. All the documents he submitted were reviewed and considered by the Board in its determination.

21.  The applicant also failed to identify which pieces of news or cases that the Board relied on were not officially recognized, or were hearsay or outdated. Contrary to the applicant’s accusation, this court finds that the Board had clearly identified the source of all country of origin information (“COI”) that it referred to in the Board’s Decision.

22.  As to the complaint of the lack of legal assistance, a lawyer from the Duty Lawyer Service did assist the applicant in the first tier of the screening process when his non-refoulement claim was assessed by the Director.

23.  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.

24.  Likewise, it is trite that the high standards of fairness required by law would not entail an 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). Moreover, it is noted that all the documents filed by the applicant in relation to the Leave Application were written 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.

25.  Lastly, the applicant’s claim that his family is in Hong Kong is not a ground to challenge the Board’s Decision. In any event, family unity rights are not a bar to refoulement of foreign nationals without a right of abode, even when they have a spouse and children who are permanent residents of Hong Kong (see Comilang & Ors v Director of Immigration [2019] HKCFA 10).

26.  It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.

27.  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).

28.  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.

29.  In assessing the appeal by the applicant, the Board arranged an oral hearing on 22 October 2019 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person.

30.  As can be seen from the Board’s Decision, the Board had thoroughly analyzed the applicant’s claims and all the supporting documents submitted by the applicant. After due consideration of the law and all the evidence, the Board found that the applicant had shown no intention of leaving his country or was in any fear of the police after the 2012 case. The applicant was a wanted person of the Bangladesh police and a fugitive from justice.

31.  Regarding his fear of false accusations by the police, taking into account of the extensive country of origin information (“COI”), the Board did not accept that reasonable protection under the due legal process in his home country was unavailable to him.

32.  The Board also did not accept that AL or BCL members were still chasing after him wanting to harm him after he had fled his country for over 4 years at the time of the Board’s Decision. The applicant was just a local official of BICS and not a high official of J-e-I. He had also ceased to be a student or party member since 2015. The fact that he had an uneventful period when he hid in different places in Bangladesh in 2013 to 2015 showed that BCL and AL people were not interested in tracking him down.

33.  In relation to the applicant’s fear of return, which was assessed on all the applicable grounds under the USM, the Board found that the applicant’s experience fell far short of the degree required by law to be “torture”. There was no sufficient evidence to establish official acquiescence. The fact that he departed Bangladesh via proper immigration channels without any problems from the national government did not suggest that he was targeted for torture by the state. His claim based on Torture Risk[1] thus failed.

34.  Although the alleged assault and the future risk thereof had been and would be launched because of the alleged political affiliation and thus the dispute fell within the Convention Categories, the Board found that there was reasonable availability of state protection from such harm even if the risk of harm arose from political affiliation.

35.  Further, the applicant had not suffered any severe injury or serious harm, which would place him within the criteria of cruel, inhuman or degrading treatment or punishment under Persecution Risk[2].

36.  The Board also found that the applicant, being a young and able-bodied person, could safely relocate to other places in Bangladesh without undue hardship.

37.  Moreover, the Board found no substantial ground to believe that the applicant would face a genuine and substantial risk of being subjected to any serious harm which would meet the minimum level of severity, or otherwise being deprived of his life arbitrarily on the ground of BOR 3 Risk[3] and BOR 2 Risk[4] respectively.

38.  Based on its findings as summarised above, the Board concluded that the applicant had failed to substantiate a case for non-refoulement protection.

39.  The assessment of evidence, COI 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.

40.  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.

41.  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

42.  For reasons aforesaid, the Leave Application is dismissed.

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