S M KAWSAR AHAMMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1026/2020

[2025] HKCFI 3933

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1026 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  The Applicant’s Form 86 be amended to name the TCAB as the putative respondent; and

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  By a Form 86 filed on 28 May 2020 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB”) made on 14 May 2020 (“the TCAB Decision”).  A copy of the TCAB Decision can be viewed by the following hyperlink[1].

2.  The TCAB Decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 21 September 2018. 　The Applicant named both the TCAB and the DI as the putative respondent and the DI as the putative interested party.　 I amended the Form 86 on my own motion to name only the TCAB as the putative respondent.

3.  The Applicant is a Bangladeshi national.  He claimed to be a member of a political party called Bangladesh Nationalist Party (“BNP”) and was appointed as the Public Relation Secretary in Dhaka.　 The Applicant also stated that the cousin of his wife was a government minister.  His non-refoulement claim was based on an alleged risk of (i) being harmed or killed by the affiliates of a political party called Awami League (“AL”), and (ii) being framed up with some false cases.

4.  The Applicant has set his ground on which relief is sought in the supporting affirmation of this leave application.  The Applicant complained that no lawyer was provided to him for advice during the TCAB hearing.  In the oral hearing before me, the Applicant stated that he had nothing to say.

5.  On the ground concerning legal assistance, the Court of Appeal has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakhevel Prabakar (2004) 7 HKCFAR 187 nor FB & Ors v Director of Immigration & Anor [2009] 2 HKLRD 346 required a non-refoulement claimant to have an absolute right to free legal representation at all stages of the proceedings (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).  The real question is whether the Applicant was prejudiced.

6.  The Applicant failed to show how his case would be prejudiced by the lack of legal representation.  His primary materials, including the non-refoulement claim form and the answers in the DI’s screening interview were given at a time he was under legal representation.  In the TCAB hearing, although the Applicant was not legally represented, he was able to give answers to the TCAB’s queries and make representation in the TCAB hearing with the assistance of an interpreter.  The Applicant suffered no real prejudice due to a lack of legal assistance in preparing for the appeal and during the hearing before the TCAB.

7.  The TCAB conducted a hearing to inquire into the facts of the Applicant’s claim.  The TCAB stated the applicable legal principles in the TCAB Decision and set out the Applicant’s case comprehensively. The TCAB found that the Applicant’s evidence is incredible in that he was only able to provide very limited publicly available documentary information but no detail.  The TCAB did not consider the Applicant’s union level position to be one that was high-profiled or senior, and found that he provided inconsistent versions of different events to the TCAB (including the police search at his home in 2009).  

8.  While the TCAB accepted that the Applicant might have some past involvement in the BNP possibly prior to his first travel to Hong Kong in 1993, the TCAB was not satisfied that he was still involved in BNP after he returned to Bangladesh from Hong Kong in 2007.  He had been physically in Hong Kong since around 2008.  It was on those bases the TCAB found that even if taking the Applicant’s claim at the highest, the Applicant was not subject to any real risk of ill-treatment, torture, persecution or violation of fundamental rights if he returns to his home country.  

9.  I have reviewed the TCAB Decision vigorously.  In my judgment, the TCAB Decision was based on sound factual findings and there was no apparent legal error in the decision.  These findings were within the TCAB’s discretion and supported by evidence.

10.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any future risk of ill-treatment exists if an applicant returns to his/her home country lies with the TCAB.  In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the TCAB’s findings or make a determination on the case afresh.  The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).

11.  The leave application to apply for judicial review is thus 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