BAPARI MOHAMMAD KHOKAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 3532/2019

[2025] HKCFI 5187

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3532 OF 2019

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 the applicant being absent 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 22 November 2019”.

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 filed on 28 November 2019, 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 26 day of November 2019.

The decision of the torture claims appeal Board/ Adjudicator, made on 22 day of November 2019 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.  In fact, the Torture Claims Appeal Board (“the Board”) only made one decision on 22 November 2019 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against decision of the Director of Immigration (“the Director”) dated 9 August 2018 (“the Director’s Decision”).

3.  The applicant stated in paragraph 8 under the heading “FACTUAL BACKGROUND AND CHRONOLOGY” of his supporting affirmation dated 28 November 2019 that he got the Board’s Decision on 25 November 2019. A copy of the Board’s Decision was also annexed to the affirmation.

4.  Thus, the decision in respect of which relief is sought in the Leave Application should only be 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/HCAL003532_2019_files/the_Board's_Decision.pdf

5.  The Board found that the applicant had failed to establish any ground for which he could claim protection under the Unified Screening Mechanism (“the USM”). The applicant’s fear was not well-founded and he had various protection and relocation opportunities available in his home country of Bangladesh. Hence, the Board affirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.

Amendments

6.  In Form 86, the applicant named “Ms Alexandra LO, 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.

7.  Ms Alexandra LO was in fact making the Board’s Decision on behalf of the Board in her capacity as a member of the Board. Hence, the putative respondent in the Leave Application should be the Board instead.

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

9.  As aforesaid, the decision in respect of which relief is sought should be “Torture Claims Appeal Board’s decision dated 22 November 2019”. Thus, on this court’s own motion, it is so amended.

The applicant’s case

10.  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.

11.  In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, he would be ill-treated or killed by people from the Awami League (“AL”) (“the Enemies”) due to his membership of the Bangladesh Nationalist Party (“BNP”).

Oral hearing

12.  The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 15 August 2025.

13.  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 the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

14.  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

15.  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).

16.  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 28 November 2019, which basically complained about the lack of legal assistance and language assistance, and the lack of time for preparation of his appeal.

17.  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 the above grounds to make the Leave Application, this court will still deal with the grounds as discussed below.

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 was procedural 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 filed his Notice of Appeal/Petition to the Board on 20 August 2018 and his case was heard on 28 August 2019. Clearly, he had more than one whole year to prepare for the appeal. If he had any further evidence to produce to the Board, he had ample time and opportunity to do so.

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.  This court finds that none of the grounds asserted by the applicant constitutes a valid ground to challenge the Board’s Decision.

26.  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).

27.  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.

28.  In assessing the appeal by the applicant, the Board arranged an oral hearing on 28 August 2019 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person.

29.  Having considered all the evidence, the Board found that the applicant had never met the Enemies face to face. Apart from the physical fight involving his brother Shiraj in 2013, the applicant and his family in fact never had any encounter with the Enemies. The applicant believed they targeted him not because of what he had done but because he and his family belonged to the BNP.

30.  The applicant also confirmed to the Board that he had not been threatened or attacked by any Enemies from AL at any time. He could not explain the reason for the threat of the apparent contradictory behaviour of his Enemies conveyed by his neighbours, namely that the Enemies would go to look for his whereabouts and then threatened his family to ask him not to return to Bangladesh.

31.  The Board further found no evidence that the police in Bangladesh would be unable or unwilling to protect the applicant. The fact that the applicant chose not to seek state protection did not mean that it was unavailable or that it was ineffective. In fact, the applicant spent two years in Dhaka working as a salesman in a shop without showing any fear of being identified by his Enemies or anyone.

32.  Taking into account all the relevant circumstances, the Board found no reasonable likelihood that the risk of harm from the Enemies was real or foreseeable. The applicant did not face a genuine risk of ill-treatment, torture, persecution or arbitrary deprivation of life should he return to Bangladesh.

33.  Despite its finding as summarised above, the Board nevertheless went on to assess the viability of internal relocation for the applicant. The law in Bangladesh provided for freedom of movement. The Board considered that it would not be unduly harsh for the applicant, being a young and able-bodied person, to relocate to other large cities in Bangladesh such as Khulna or Chittagong to be free of any risk of harm from his Enemies.

34.  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.

35.  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.

36.  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

37.  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