AHMED MD RAFIQUE v. TORTURE CLAIMS APPEAL BOARD

HCAL 3423/2019

[2025] HKCFI 4101

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3423 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 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 8 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 dated and filed on 19 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a “DECISION OF THE TORTURE CLAIM APPEAL BORD AND IMMIGRATION DIRECTOR MADE ON. 23TH NOV. 2018”.

2.  However, the Director of Immigration (“the Director”) or the Torture Claims Appeal Board (“the Board”) did not make any decision regarding the applicant on 23 November 2018. The applicant annexed a copy of the decision of the Board dated 8 November 2019 (“the Board’s Decision”) to his supporting affirmation dated 19 November 2019. The applicant also confirmed at the hearing before this court on 26 June 2025 that the Board’s Decision was the subject of the Leave Application.

3.  Thus, the Leave Application is in respect of the Board’s Decision, which can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003423_2019_files/the_Board's_Decision.pdf

4.  The Board found that the applicant had shown no grounds for non-refoulement protection on the basis of BOR 3 Risk[1], BOR 2 Risk[2] or Persecution Risk[3] under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s petition and confirmed the decision of the Director dated 28 February 2018 (“the Director’s Decision”).

5.  The applicant made a CAT claim[4] previously on 18 August 2012, which was refused by the Director on 3 May 2013. The applicant did not file any appeal against that refusal. Thus, the applicant’s Torture Risk[5]had been finally determined and it was not necessary for the Board to re-assess the applicant’s Torture Risk again in the Board’s Decision.

Amendments

6.  In Form 86, the applicant named both the Board and the Director as the putative respondents but wrongly spelt the Board’s name. In fact, only the Board should be named as the putative respondent. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

7.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision. Thus, on this court’s own motion, the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 8 November 2019”.

The applicant’s case

8.  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.

9.  In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, his life would be at risk from the Awami League (“AL”) because of his affiliation to a rival political party, the Bangladesh Nationalist Party (“BNP”). The applicant claimed that he had been warned that unless he left BNP and transferred his allegiance to AL or the Jatiyo Party, AL’s political associates, he would be killed.

Oral hearing

10.  The applicant requested for an oral hearing of the Leave Application, and his case was heard on 26 June 2025.

11.  Apart from confirming that the Board’s Decision was the subject of the Leave Application, the applicant submitted to this court a 3-page written submission dated 26 June 2025 containing grounds for his intended judicial review, as well as an article dated 7 August 2024 from TGP The Geopolitics titled “Political Upheaval in Bangladesh: Challenges of Stability and Reordering”. However, the applicant did not elaborate the grounds contained therein.

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.  The applicant asserted in Form 86 that the decision to refuse his torture claim was unreasonable because they did not hear his claim properly, and the decision was based on assumption.

14.  In his supporting affirmation dated 19 November 2019, the applicant asserted that the decision of the Director was unreasonable in that he failed to consider all the matters raised in his claim, and the Board made the decision without any hearing.

15.  The applicant did not elaborate on the above grounds in Form 86 and the supporting affirmation at the oral hearing before this court on 26 June 2025, but relied on the written submission submitted at the hearing as aforesaid.

16.  In the written submission, the applicant raised a number of issues. The applicant’s assertions can be summarised as follows:-

(1)  It would still be dangerous for him to return to Bangladesh as his enemies were continuously looking for him to kill or harm him;

(2)  The situation in Bangladesh has completely changed after the 5^th August revolution, the long-term regime AL party had fled away and chaos started since then;

(3)  The Board did not focus on the facts that he had raised, and it was unacceptable for the Board to have assessed his fear as too low and the nature of his dispute as private and personal;

(4)  (Procedural Impropriety) – the Board failed to properly apply para national UN committee against Torture general Comment No.2;

(5)  (Procedural Impropriety) – the Board failed to conduct sufficient enquiry into the relevant country of origin conditions and failed to consider the applicant’s risk;

(6)  (Procedural Impropriety/Irrationality) – the Board failed to give reasons for its assessment of the lack of BOR 2 Risk for the applicant;

(7)  (Error/Misdirection in law) – the Board failed to consider the psychological strain and threats to the applicant;

(8)  (Procedural Impropriety) – the Board failed to consider the applicant’s fear and he could not relocate to other places;

(9)  (Misdirection in law) – the Board failed to assess the applicant’s fear and his country of origin conditions;

(10)  The Board has no sufficient basis to conclude that the applicant’s family members would not be at risk of being subjected to torture / CIDTP upon refoulement;

(11)  (Against the Director’s decision) (Procedural Impropriety) – insufficient inquiry into country of origin conditions and/or failure to appropriately examine purported objective country of origin information (“COI”) materials.

Discussion

17.  First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as there are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). Thus, this court will only consider the Leave Application in respect of the Board’s Decision.

18.  Thus, the grounds directed at the Director, namely that the Director’s Decision was unreasonable in that he failed to consider all the matters raised in his claim, and there was insufficient inquiry into COI materials, cannot be used to challenge the Board’s Decision and can be simply ignored.

19.  The other grounds against the Board’s Decision that were outlined in the applicant’s Form 86 and supporting affirmation dated 19 November 2019 (which included (1) the decision was unreasonable because they did not hear his claim properly; (2) the Board made its decision without any hearing; and (3) the decision was based on assumption) were plainly untrue.

20.  In assessing the applicant’s petition, the Board held an oral hearing on 23 November 2018. The applicant was present and gave evidence to supplement his written claim. Thus, the applicant was indeed given the chance to present his case to the Board in person. All the incidents that the applicant claimed were analyzed. The Board’s conclusion was made after due consideration of the law and all the evidence before it.

21.  As to the written submission that was submitted at the oral hearing, the grounds that were advanced against the Board’s Decision were all very general and without any particulars related to the applicant’s own case. They only contained “keys words” such as there were procedural impropriety, irrationality, error or misdirection in law on the part of the Board without specifying how or why the Board’s Decision erred. The applicant also failed to particularize how the Board failed to consider his risks, his fear, his psychological strain, etc.

22.  The applicant’s assertion that the Board has no sufficient basis to conclude that the applicant’s family members would not be at risk of being subjected to torture / CIDTP upon refoulement is simply groundless, as the Board did not make such a finding.

23.  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”.

24.  Thus, none of the grounds that were contained in that document 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.

25.  The applicant also seemed to suggest that the recent political change in Bangladesh would put him at risk. The article from TGP The Geopolitics titled “Political Upheaval in Bangladesh: Challenges of Stability and Reordering” that was attached to the applicant’s written submission dated 26 June 2025 is in fact about the recent political changes in Bangladesh, the unrest in society and how the political instability in Bangladesh would affect India and its border security, etc. The article does not relate to the applicant’s own case at all.

26.  More importantly, if the applicant intended to submit new evidence to this court for consideration of his non-refoulement claim, it was not permissible. As held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

27.  Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition.

28.  Thus, the applicant cannot rely on the recent political change in Bangladesh to support his claim at this stage.

29.  In the circumstances, none of the grounds raised by the applicant could amount to a valid ground to challenge the Board’s Decision.

30.  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, supra).

31.  Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

32.  The Board questioned the applicant for details of his claims but found that the applicant was not at risk from AL, any of their associated parties or their members or indeed anyone in Bangladesh if he were to return to that country. The Board acknowledged that political violence was not unknown in Bangladesh, but it found most unlikely that the work done by the applicant for BNP or their student wing would attract the enmity of AL as he claimed. The applicant’s role in BNP was relatively minor and it was unrealistic to suggest that his activities would attract the severe reaction from the opposing political party.

33.  The Board also found that AL had been the ruling party by a comfortable margin at the material time and had been so for some time. There was really no need for them to get the support and allegiance of the applicant who was then very young and might only have experience at the local level of Bangladeshi politics. Moreover, it had been years since the applicant had been active in politics on behalf of BNP. The applicant left Bangladesh in May 2012 and had not taken any part in any party activities since then. The Board found it wholly unrealistic to suggest that the applicant would still be of any interest to AL or their associates.

34.  The Board also assessed the death of the applicant’s father, who was a member of BNP, as a result of an attack in 2015. It was the applicant’s own evidence that a witness to the attack told him that a big group of AL people rushed into the office to randomly attack the BNP members with hockey sticks. The Board found it plain that it was not an attack specifically targeting the applicant’s father. He was unfortunate to have been in that office at the time. The incident, even if it took place as claimed, did not support the applicant’s claim that he had been personally targeted by AL.

35.  While the Board had made the finding that the applicant did not face a real risk of torture, arbitrary deprivation of life and persecution, the Board nevertheless found that even if there were any threat to the applicant, it would be both practical and reasonable for the applicant to relocate elsewhere in Bangladesh away from the locality where he previously lived. The Board found the applicant’s claimed threat localized. Despite the AL’s superiority in parliament, it was fanciful to suggest that AL or any of its members had the motive or the ability to locate the applicant wherever he might choose to live in Bangladesh.

36.  Further, in view of the length of time that had elapsed between the hearing and the preparation of its decision, the Board invited the applicant to make further representations or submissions in case he wished to add anything. However, the applicant did not respond to that invitation.

37.  Thus, the Board had indeed assessed the applicant’s claim with due care and gave detailed reasoning for its conclusion that the applicant had shown no grounds for non-refoulement protection on the applicable grounds under the USM. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

38.  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 also satisfies the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

39.  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

40.  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