ABU TAIB v. TORTURE CLAIMS APPEAL BOARD

HCAL 2145/2020

[2025] HKCFI 5597

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2145 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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 25 August 2020”.

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 27 October 2020, 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 15 day of October 2020.

The decision of the torture claims appeal Board/ Adjudicator, made on 25 day of August 2020 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.  The Torture Claims Appeal Board (“the Board”) made a decision on 25 August 2020 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against two decisions of the Director of Immigration (“the Director”). 

3.  The Director’s first decision was dated 26 January 2015 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim on the grounds of Torture Risk[1], BOR 3 Risk[2] and Persecution Risk[3] under the Unified Screening Mechanism (“the USM”).  The Director’s second decision was dated 9 May 2017 (“the Director’s Further Decision”), which rejected the applicant’s claim based on BOR 2 Risk[4].

4.  At the oral hearing before this court on 23 September 2025, the applicant confirmed that the Leave Application was in respect of the Board’s Decision only.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002145_2020_files/the_Board's_Decision.pdf

5.  The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the USM.  Thus, the Board refused the applicant’s appeal/petition and confirmed both the Director’s Decision and the Director’s Further Decision.

Amendments

6.  In Form 86, the applicant named “Christopher THWAITES, 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.  Mr Thwaites was in fact making the Board’s Decision on behalf of the Board in his 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 25 August 2020”.  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, his life would be in danger due to (1) a false firearm case against him; (2) a political problem; and (3) a land dispute with his neighbour Nurul Islam.

Oral hearing

12.  The applicant requested for an oral hearing of the Leave Application.  His case was heard on 23 September 2025.

13.  When this court asked the applicant to elaborate on the grounds for his intended judicial review as laid out in a document with the title “GROUNDS ON WHICH RELIEF IS SOUGHT” annexed to his Form 86 and in his supporting affirmation dated 27 October 2020, he merely replied that he had already submitted his explanation and he did not have any more explanation.

Grounds for judicial review

14.  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).

15.  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 27 October 2020, which basically complained about the lack of legal assistance and language assistance, and the lack of time for preparation of his appeal.

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

Discussion

17.  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”.

18.  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 were procedural errors or unfairness cannot help the applicant at all.

19.  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 9 February 2015 against the Director’s Decision, and the Director’s Further Decision to refuse his non-refoulement claim based on BOR 2 Risk was made on 9 May 2017.  His case was heard by the Board in one go on 1 November 2019.  Clearly, he had more than 4 years and 8 months to prepare for his appeal/petition against the Director’s Decision.  Even if the time was counted from the time the Director’s Further Decision was made, he still had more than 2 years and 5 months for his preparation.  If he had any further evidence to produce to the Board, he had ample time and opportunity to do so.

20.  This court also notes from the Board’s Decision that the Board had given time to the applicant upon his request to obtain further documents in relation to his alleged sentence to 10 years’ imprisonment, and had even extended the time for him to do so upon his failure to provide the said document within the initial allowed period.  However, the applicant failed to submit any document in this regard when the extended period ended.

21.  Further, the applicant 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 1 November 2019 and the applicant was present.  Thus, the applicant did have the opportunity to present his case to the Board in person.

29.  As can be seen from the Board’s Decision, the Board had thoroughly analyzed the applicant’s claims and all the supporting documents submitted by the applicant.  The Board questioned the applicant in detail about his background, his family composition, his work and business as well as political affiliations and activities in Bangladesh.  The Board also questioned the applicant in detail about all the matters that gave rise to his non-refoulement claim, namely the land dispute, his political involvement and activities, the firearm/weapons case and the outstanding legal/criminal matters in Bangladesh.

30.  The Board found numerous aspects of the applicant’s claims reflected poorly on the applicant’s credibility and the reliability of his claims.  The Board found that the applicant was not a witness of truth, and the Board was not satisfied that the applicant had told the Board the truth in relation to the critical elements of his claims.

31.  In relation to the applicant’s fear of return because of the alleged firearm false case against him, the Board was not satisfied that the applicant had told the Board the truth in relation to his claims about being arrested and charged with a weapons offence prior to leaving Bangladesh.

32.  While the Board accepted there might have been a property dispute about some land in the applicant’s village, the documents provided by the applicant did not support his claims that he and his family were the victims of abuse by a local politician. Instead, the document indicated that it was the applicant and his family that had been accused of threats and assaults and property damage.

33.  On the evidence, the Board did not accept that a local politician had abused, threatened and assaulted the applicant and his family in relation to a property dispute.  The Board did not accept that there was a real risk the applicant would be threatened, assaulted, harmed or killed in any way in relation to any property dispute if he returned to Bangladesh.

34.  As to the applicant’s alleged threat due to his political affiliation and activities, the Board did not accept the applicant was an ongoing active supporter, then member and then General Secretary for the Bangladesh Nationalist Party (“BNP”).  The Board did not accept that he had been charged with any offences relating to political rallies or bombings at political rallies and that there were any outstanding warrants for the applicant in Bangladesh.  The Board did not accept anyone in Bangladesh had any adverse interest in the applicant based on his previous political activity.

35.  Based on its findings as summarised above, the Board concluded that the applicant would not be at a real risk of any harm upon refoulement.  The Board found that there was not a real risk the applicant would be at risk of torture, ill-treatment, arbitrary deprivation of life or persecution if he returned to Bangladesh.

36.  The Board did not consider availability of state protection and viability of internal relocation.  However, as the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it is therefore not necessary for the Board to consider the availability of state protection.

37.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997).  In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

38.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

39.  The assessment of evidence 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.

40.  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. 

41.  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

42.  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