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HCAL 2023/2020
[2025] HKCFI 6233
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2023 OF 2020
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BETWEEN
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Ripon Talukdar |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. 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 8 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 10 August 2020 (“the Board’s Decision”).
2. The Board found that the applicant’s claims for non-refoulement protection were not made out on BOR 2 Risk[1] under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s petition and confirmed the decision of the Director of Immigration (“the Director”) dated 19 June 2017.
3. Previously, the Board made a decision on 1 December 2016 (“the Board’s Previous Decision”) and found that the applicant failed to establish his claims for non-refoulement protection in respect of the other three applicable grounds under the USM, namely Torture Risk[2], BOR 3 Risk[3] and Persecution Risk[4]. Hence, the Board dismissed the applicant’s appeal/petition against the Director’s previous decision dated 30 April 2015 and confirmed the same.
4. Thus, the Board’s Decision, which is the subject matter of the Leave Application, only dealt with BOR 2 Risk.
5. The Board’s Previous Decision and the Board’s Decision can be viewed in the following hyperlinks:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002023_2020_files/1st_Board's_Decision.pdf
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002023_2020_files/2nd_Board's_Decision.pdf
The applicant’s case
6. 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 Previous Decision and the Board’s Decision, which can be viewed in the hyperlinks above.
7. In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, (1) he would be harmed or killed by unspecified members of the Awami League as he had witnessed fights and, in a separate incident, the murder of a girl; and (2) he would be placed in prison because he had been convicted of attempted murder and sentenced to 4 years’ imprisonment together with a fine in his absence.
Oral hearing
8. The applicant requested for an oral hearing of the Leave Application. However, he was absent at the hearing on 2 December 2025.
9. 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.
10. 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
11. 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).
12. The applicant did not advance any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 8 October 2020. The applicant merely stated in his affirmation that he did not agree with the adjudicator.
Discussion
13. 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).
14. 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.
15. In assessing the petition by the applicant, the Board held an oral hearing on 4 September 2019. The applicant was represented by Duty Lawyer, Mr Phillip Ross, and hence had the chance to present his case to the Board through his legal representative.
16. As can be seen from the Board’s Decision, the applicant (through Mr Ross) attempted to “resurrect from the grave” the issues which had already been dismissed in the Board’s Previous Decision, except one “new” aspect, which was actually related to the applicant being sentenced to 4 years’ imprisonment and fined by the Chief Magistrate in Gopalganj, Bangladesh in his absence.
17. In relation to this issue, the Board found that the worst scenario for the applicant was imprisonment for 4 years and a fine, which did not show any substantial risk to his life under BOR 2 Risk. The Board also found that the argument concerning trial in absentia or accessibility for retrial was irrelevant to the applicant’s claim for non-refoulement protection on the ground of BOR 2 Risk.
18. Moreover, the applicant’s other fears of returning to Bangladesh, ie the other matters that gave rise to the applicant’s non-refoulement claim on the remaining grounds, including BOR 3 Risk under the USM, had been duly considered but rejected by the Board in the Board’s Previous Decision.
19. As held in Re Kulwinder Kaur [2022] HKCA 48, the issues under BOR 2 Risk are not separable from those under BOR 3 Risk. Upon determining that there is no BOR 3 Risk, there is no arguable ground for any BOR 2 Risk (see also AA v Sweden (2017) 64 EHRR 20 and RM v Gerard Paul Muttrie Esq, HCAL 166/2015, 3 March 2016). Thus, it was not necessary for the Board to re-assess the applicant’s claim for non-refoulement protection based on his other problems that had already been considered but rejected previously.
20. The finding of facts, including the assessment of evidence and risk of harm, was solely within the ambit of the Board. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
21. For the sake of completeness, this court noticed that the adjudicator, Mr William Lam, signed the Board’s Decision as “Adjudicator of the Non-refoulement Claims Petition Office” instead of “Member of the Torture Claims Appeal Board”. This is not a correct description of his capacity, as he was not making the determination on behalf of the Non-refoulement Claims Petition Office. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the members of the Board and does not have the capacity to determine non-refoulement claims itself.
22. Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme). Thus, only the members of the Board have the powers to hear and determine the applicant’s petition.
23. Nevertheless, the wrong description of his capacity does not nullify the Board’s Decision, as Mr Lam was indeed a member of the Board and did have the power to determine the applicant’s petition.
24. 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, 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.
25. In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that 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
26. For reasons aforesaid, the Leave Application is dismissed.
Dated the 17th day of December 2025
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( Irene LEE )
for Registrar, High Court
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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
Notes for the applicant:
If leave has been granted, the applicant or the applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors
on: 17 December 2025
Applicant’s ref. no:
Nil |
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on:
17 December 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
BOR 804/17/6/121/B82
USM 1537/15/5/69/B211
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 381/14
(Formerly RBCZ 1898/09)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[2] Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[3] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.
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