KASHEM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2545/2019

[2025] HKCFI 2421

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2545 of 2019

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

Following:

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

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Kashem (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 21 August 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 26 January 2017 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.  The Applicant is a Bangladeshi. He was born on 2 January 1975 in Narail, Bangladesh. He received about 8 years of education and had about 20 years of experience operating his own shop (“Shop”).

3.  The Applicant joined the Bangladesh Jamaat-e-Islami Party (“BJI”) in around 2011. He served as the General Secretary for BJI and his duties included asking people to pray and attend party activities. The Applicant's wife was also a BJI supporter and his cousin brother (“JA”) was a general member of BJI. BJI was a political rival of another party, the Awami League (“AL”). The Applicant was promoted to the General Secretary position in 2011, which was voluntary work without pay.

4.  In mid-2011, the AL members searched for JA but could not locate him. While the Applicant was going home by bicycle on a day in mid-2011, about two dozen AL members approached him. They stopped the Applicant and asked for JA's whereabouts. When the Applicant told them he did not know JA's location, they threatened to kill both JA and the Applicant if they continued to support the BJI.

5.  The attackers were armed with long knives and axes, and they attacked the Applicant for around 10 minutes. As they were wearing masks, the Applicant could not recognize them. He escaped to a neighboring village and took shelter at an unknown villager’s home. The villagers took him to a village doctor who bandaged him. The Applicant's left elbow and right leg were injured during the attack in mid-2011. After returning home from the neighboring village, he went to the Sadar Hospital (“SH”) for medical treatment, where he stayed for 4 days before returning home. It took around 1.5 months for him to recover fully.

6.  During his hospitalization at SH, the Applicant tried to make a police report, but the police did not take his complaint, stating that they had instructions from the AL not to entertain any complaint lodged by opposition party members. They also stated that if the Applicant insisted on making a report, he would be charged instead.

7.  After returning home, the Applicant began to receive calls from the AL members and they threatened to kill him. The Shop was run by his family while he was recovering from his injuries and some AL people threw a cocktail bomb at the Shop. The bomb exploded outside the Shop but nobody was injured. The Shop was then closed for some time because of the incident.

8.  The Applicant and his family did not report the bomb attack to the police because they thought the police would not accept a complaint filed by people who opposed the AL.

9.  The Applicant shut down the Shop to avoid the AL members. He switched off his phone as he feared that the AL members could locate him. The Applicant went to his in-law’s house in Khulna and stayed there for about 7 months. Nothing happened to him during that time, and he kept in touch with his family members. They told the Applicant that some AL members had threatened them and asked for his whereabouts. Those AL members also told the Applicant's family members that they would kill him if he went home.

10.  On a day during his stay in Khulna, an AL member phoned and threatened the Applicant. The caller threatened to kill the Applicant when he saw him again. The Applicant then called JA, who advised him to hide somewhere else.

11.  The Applicant then moved to his sister's home in Jessore where he stayed for around 2 months. Though he received phone threats from the AL members who threatened to kill him, nothing happened to him. The Applicant contacted his family members, and they advised him not to go home since the AL members were looking for him in the village and threatened to kill him. During the Applicant’s stay in Jessore, some AL members attacked his father.

12.  While the Applicant was in Jessore, he learned that he had been framed for attacking the police and a warrant of arrest was issued against him. He believed that it was due to his attempt to file a complaint against the AL. JA was also arrested for the same charge.

13.  Fearing for his safety, the Applicant departed Bangladesh through the airport in Dhaka in around July 2014. He stayed in Mainland China for around 1 week before sneaking into Hong Kong by a speedboat. He was arrested by the police on 28 July 2014.

14.  The Applicant claimed that he would be harmed or killed by members of the AL due to his involvement with the BJI if returned to Bangladesh.

15.  The Applicant learnt that even after he had fled from his home, his wife and sister had been attacked by the AL members and his house was vandalised by them.

16.  The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”):

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 ("Ordinance" and “torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR” and “BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“Refugees Convention”).

17.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

18.  On 2 September 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Board as the proposed respondent and the Director as the interested party.

Legal principles applicable to judicial review

19.  In a judicial review, the court does not step into the shoes of the decision makers.

20.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI [i.e. country of origin information] materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

21.  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 had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

22.  In the Form 86, the Applicant did not put forward any ground for his intended judicial review.

23.  In the Supporting Affirmation, the Applicant exhibited the Board’s Decision and annexed a statement (“Statement”) reiterating his claims and putting forward the following grounds for his intended judicial review:

(1)  the Director and the Board wrongly adopted a system of not asking any question and hastily rendered their decisions;

(2)  the Applicant was not given any legal representation at the hearing before the Board;

(3)  the time for preparing for the oral hearing was very short;

(4)  the Applicant was given a hearing bundle in English which was a language he did not understand;

(5)  the Bangladeshi authorities would arrest or kill him upon his return to Bangladesh; and

(6)  internal relocation was impossible because he was targeted by the Bangladeshi authorities and the AL.

24.  The Applicant complained that the Board did not ask questions at the hearing. Whether the Board needed to ask questions at the hearing depended on whether there were matters concerning the Board which had not been fully dealt with by the Applicant’s evidence. It was not a “must” that the Board had to ask the Applicant questions at the hearing. Such complaint of the Applicant has no legal basis. It also lacks factual basis. In §§55-64 of the Board’s Decision, the Board had set out some of the questions raised by the Board to the Applicant at the hearing for the Appeal. These were on top of his evidence given in chief and under cross-examination. The Applicant’s complaint of the Board not asking questions at the hearing of the Appeal was not supported by evidence and has no merits.

25.  The Applicant complained that he was not legally represented at the Appeal hearing before the Board. This was plainly wrong. According the Board’s Decision, the Applicant was represented by the Duty Lawyer Service (“DLS”) at the hearing for the Appeal. The Applicant attended the court hearing of 17 April 2025 (“Court Hearing”) and confirmed that he was represented by the DLS at the hearing for the Appeal. This complaint of the Applicant has no merits whatsoever.

26.  The Applicant complained that the time for his preparing for the oral hearing was “very short”.

27.  The DOI Decision was dated 26 January 2017 and the hearing of the Appeal before the Board did not take place until 18 July 2019. The Applicant had more than 2 years and 5 months to prepare for the Appeal hearing. Bearing in mind that the Applicant was all along legally represented, I do not accept that such period for preparation can be considered as “very short” by any standard. I see no merits for the Applicant to rely on this ground for his intended judicial review.

28.  The Applicant also complained that the hearing bundle was provided in English only and he did not understand English. The Applicant was assisted by an interpreter at the hearing for the Appeal. (See §41 of the Board’s Decision) This was also confirmed by the Applicant at the Court Hearing.

29.  Documents contained in the hearing bundle were set out in §8 of the Board’s Decision. They were documents submitted by the Applicant or his legal representative, the record of his screening interview with the Immigration officer (Interview Record”), the DOI Decision, the country of origin information (“COI”) materials and skeleton submissions of the Director.

30.  The Applicant should know what was contained in the documents submitted by the Applicant or his legal representative which were his documents. He knew what was contained in the Interview Record which he attended with the assistance of an interpreter. The Interview Record should have been read back to him in his own language before he signed the same. As pointed out above, the Applicant was legally represented at the hearing before the Board. As such, his legal representative should have explained to him the content of the DOI Decision, the COI materials and the skeleton submissions of the Director. In such circumstances, I do not see how may the Applicant rely on his English disability as a ground for his intended judicial review.

31.  The Applicant did not agree to the Board’s assessment of the risk of harm faced by him in his home country and asserted that internal relocation was not viability to him.

32.  In this case, the Board found that the Applicant was an untruthful witness who had fabricated the entirety of his claims. The Board was not satisfied that if the Applicant returned to Bangladesh, there was a real chance, a real risk or substantial or strong grounds for believing that he would be subjected to the proscribed risk of harm. As such, it was not necessary for the Board to consider the viability of internal relocation in this case.

33.  As pointed out in the Nupur Mst case (supra), assessment of evidence and risk of harm were primarily within the province of the Board. The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.

34.  In disputing the Board's assessment on evidence, credibility and risk of harm, the Applicant sought to challenge the findings of fact of the Board which is not permissible in a judicial review unless in making such findings there were errors of law or procedural unfairness or irrationality. I find none in this case.

35.  In §§9-64 of the Board’s Decision, the Board set out in some details evidence given by the Applicant at different stages of his non-refoulement protection claim proceedings. For reasons stated in §§83-112 of the Board’s Decision, the Board considered that the nature and extent of the inconsistencies in his evidence were such that the Board was drawn to the conclusion that the Applicant was not a truthful witness and he had manufactured his claims for non-refoulement protection by relying on the deplorable situation in Bangladesh with regard to political violence; the government’s response to that violence; and action taken against members of the BJI (§82 of the Board’s Decision).

36.  The Board concluded that the Applicant had fabricated the entirety of his claims regarding his involvement with the BJI. The Board did not accept that he was a member or the General Secretary of the BJI. The Board also did not accept that the Applicant was sought or harmed in 2011 or that he subsequently went into hiding or that he was the subject of an arrest warrant in relation to false charges. The Board did not accept that the Applicant fled from Bangladesh or his family members were harmed or his house destroyed, or that he genuinely feared harm from the AL upon his return to Bangladesh.

37.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds for seeking non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

38.  At the Court Hearing, the Applicant was unable to identify any error of law, procedural unfairness or irrationality in the Board’s Decision. He said that he had health problems and needed to receive medical treatment. This is no ground for seeking non-refoulement protection nor ground for judicial review of the Board’s Decision.

39.  In §§119-140 of the Board’s Decision, the Board considered the Claim under each of the applicable grounds under the USM. The Board was not satisfied that there were substantial grounds for believing that the Applicant would be in danger of torture, as defined in Section 37U(1) of the Ordinance, or BOR 3 risk from persons within or associated with the AL, or from the Bangladeshi authorities if he was removed or surrendered to Bangladesh. The Board found that the Applicant’s claim did not engage BOR 2 as the Board was not satisfied that he would suffer the death penalty, arbitrary deprivation of life or genocide on the basis of any past or future involvement with the BJI. The Board was not satisfied that the Applicant had a well-founded fear of persecution for any of the reasons referred to in Article 33 of the Refugees Convention.

40.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the applicable grounds under the USM. These were findings of fact exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings for the Claim. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

41.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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