RATAN KUMAR SAHA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2541/2019

[2025] HKCFI 2422

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2541 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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Ratan Kumar Saha (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 26 August 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 31 August 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“NRC”).

Background of the Applicant and the NRC

2.  The Applicant is a Bangladeshi. He was born on 2 April 1975 in District Munshigonj, Bangladesh. He received about 9 years of education.

3.  The Applicant's father worked at the Abdulapur Cold Storage (“ACS”), which was near the base of operation for two renowned local thugs, CB and his brother MO. CB and MO terrorized people in and around the area with their criminal behaviours. CB also operated a base from Rampal.

4.  In mid-2005, MO abducted the Applicant's elder brother (“DE”) and demanded a ransom for his release. During his captivity, DE was shown a pistol and beaten. He was held for six hours until his family paid ransom to secure his release. DE was warned that MO would wipe him out if he reported the matter to police. The Applicant’s family did not dare to report the abduction to the police.

5.  The Applicant often went to the ACS to help his father and would speak politely and respectfully to the thugs because he was scared of them. His father asked the thugs to vacate their base as many customers avoided coming to the ACS out of fear but the thugs threatened to shoot him if he continued.

6.  Because the Applicant spoke to the thugs, people in the area thought he was connected to them. Even the police, who sometimes came in plain clothes posing as customers, believed the Applicant was associated with the terrorists when they saw him talking to them.

7.  In November 2005, MO’s base was surrounded by the police. A shootout ensued between the two groups lasting about 10-15 minutes. Some thugs and a few innocent people were injured and there were two deaths, including MO.

8.  The Applicant was injured by a bullet during the shootout but he managed to escape by jumping into the river and hiding in a bush near the riverside for about one hour.

9.  After this incident, the Applicant caught a boat to Dhaka, where he was treated by a doctor and remained for about two months while his wounds healed. His father advised him to be careful as police in plain clothes were investigating and looking for ordinary people involved with the terrorists. The Applicant then went to his paternal aunt's place in Bethka and stayed there for about three months.

10.  While the Applicant was in Bethka, police came to his village in Abdulapur and searched houses where they suspected he might be. They gave the Applicant's father a copy of a warrant against the Applicant.

11.  CB was arrested and he wrote to the Applicant's father accusing him and the Applicant of being police informers who revealed MO’s base to the authorities. CB threatened that when released, he would not spare them.

12.  Upon receiving this letter, the Applicant's father felt his son was no longer safe in Bangladesh and said he would make arrangements for him to go to another country. He mortgaged their house to raise a bank loan of 400,000 Taka to send the Applicant to South Korea. From Bethka, the Applicant returned to Dhaka in around April 2006 and remained there until he left for Hong Kong with an agent, intending to transit to South Korea while fleeing threats to his life from the thugs and the police.

13.  The Applicant took a plane from Bangladesh on 1 June 2006 using a passport with a forged identity. He entered Hong Kong and was allowed to stay as a visitor. On 21 June 2006, he was arrested by the police for not carrying any proof of identity. On 10 July 2006, he was convicted of using a forged travel document and breach of condition of stay.

14.  On 21 November 2006, the Applicant lodged a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT” and “CAT Claim”), which was rejected by the Director on 1 November 2013. He lodged the NRC on 13 November 2013.

15.  In around the end of 2015, the Applicant learnt that DE was attacked in his hometown and suffered serious injuries. He was sent to a hospital in Bangladesh and later sent to India for treatment but he died in 2016. The Applicant’s friend believed CB’s men attacked DE. He also learnt that CB had become the Chairman of Rampal Union and had ties with the political party, the Awami League (“AL”).

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

(a)  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”);

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

(c)  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 NRC. 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 Director and the Board as the proposed respondents.

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 a statement annexed to the Form 86 (“Statement”), the Applicant sought relief to quash both the Board’s Decision and the DOI Decision. In the Statement, the Applicant reiterated his claims and put forward the following grounds for his intended judicial review:

(1)  the Board had unlawfully fettered it’s discretion by refusing the Appeal on the grounds that the Applicant did not satisfy the requirements;

(2)  the Board made his own assessment in an ad hoc manner and failed to meet the high standard of fairness;

(3)  the Board failed to ensure that the hearing submission and the skeleton submissions of the Director were delivered to the Applicant within a reasonable period of time and interpreted in his native language;

(4)  the majority of the documents in the hearing bundle were in English. There was insufficient time for him to prepare for the Appeal hearing as he had limited skill in English;

(5)  the Board failed to conduct any investigation, research or analysis before rendering the Board’s Decision;

(6)  the Board did not take into account Article 1 of the CAT and Section 37U(1) of the Immigration Ordinance, Cap. 115 (“Ordinance”); and

(7)  the Board failed to act fairly and there were breaches of procedural fairness.

23.  In the Supporting Affirmation, the Applicant sought judicial review of the DOI Decision and the Board’s Decision. He exhibited the Board’s Decision and reiterated some of the grounds for judicial review raised in the Form 86. He also claimed that he did not understand what would happen in the Appeal hearing before the Board since the hearing bundle was not provided earlier and it was never translated for him.

24.  The Applicant failed to attend the court hearing scheduled for 17 April 2025 (“Court Hearing”) despite notice of hearing dated 24 March 2025 having been sent to him and not being returned. The Applicant also failed to respond to the letter dated 14 January 2025 sent to him previously inviting him to lodge submissions with the court. As such, I decided to deal with this application of the Applicant for leave for judicial review of the Board’s Decision according to papers placed before the court.

25.  It was misconceived for the Applicant to seek judicial review of the DOI Decision in this case. The Applicant had appealed against the DOI Decision to the Board. The Court of Appeal had pointed out in Re: Ali Usman [2018] HKCA 955 at §21 that: “this court has on many occasions held that as the decision of the Director is capable of being appealed by the appeal/petition process, where that process has been invoked (as it was here), there is no scope for review of the Director’s Decision, and the focus should be on the decision of the Board.” The same applies to this case. I accordingly dismiss the Applicant’s application for leave for judicial review of the DOI Decision.

Insufficient preparation time

26.  The Applicant complained that the hearing submissions were sent to him late leaving him insufficient time to prepare for the hearing before the Board.

27.  In the Board’s Decision, there was no record of any complaint from the Applicant on late delivery of the hearing bundle and/or submissions. In §52 of the Board’s Decision, the Board recorded that the Board had checked with the Applicant at the Appeal hearing that the claims and evidence given up to the date of hearing were true and correct, and the Applicant confirmed that they were.

28.  In the Statement, the Applicant stated that the hearing bundle was given to him a few days before the Appeal hearing scheduled for 2 May 2019. In the Supporting Affirmation, the Applicant stated that the hearing bundle was sent to him under a covering letter dated 24 April 2019, which was 8 days before the Appeal hearing scheduled for 2 May 2019. As such, the Applicant had about one week after receiving the hearing bundle to prepare for the Appeal hearing. Although one week was not a long period of time, it was a reasonable time in the circumstances of this case for the Applicant’s preparation of the Appeal bearing in mind that the content of the documents contained in the hearing bundle was known to the Applicant. (See discussion below on “lack of language assistance”.)

29.  Furthermore, if the Applicant considered that he did not have sufficient time to prepare for the Appeal, he might apply to the Board for more time for preparation. There was no record in the Board’s Decision of the Applicant complaining to the Board that the hearing bundle and submissions were sent to him late or requesting further time to prepare for the Appeal.

30.  In the circumstances of this case, such complaint is not reasonably arguable in his intended judicial review.

Lack of language assistance

31.  The Applicant complained that his limited understanding of the English language caused difficulties for him to understand the hearing bundle and hearing submissions for the Appeal hearing before the Board.

32.  The hearing bundle for the Appeal hearing before the Board should be basically made up of the Applicant’s claim form (“NCF”), the record of his screening interview with the Immigration officer (“Interview Record”), the DOI Decision, the Applicant’s notice of appeal and the COI materials referred to in the DOI Decision.

33.  The Applicant should know what was contained in the NCF and notice of appeal which were documents prepared and submitted by him. 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. The DOI Decision was sent to him and he had to understand the DOI Decision before he appealed to the Board. The COI were materials considered by the Director and referred to in the DOI Decision.

34.  The hearing submissions of the Director only reiterated the views and findings of the Director stated in the DOI Decision. In §11 of the Board’s Decision, the Board recorded that communication in the Appeal hearing was facilitated by an interpreter. As such, the Applicant could seek assistance from the interpreter if he had any difficulties in understanding the documents in the hearing bundle or the hearing submissions or skeleton of the Director.

35.  Furthermore, it could not have been the intention of any authority laying down the principle of high standards of fairness that the principle would include provision of interpretation service at any time a claimant desired or required. It was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English. He has to live with or cope with his language disability. He cannot expect to have the luxury of having every document translated into his native language for his benefit as and when he requires. He has to find assistance himself from among his friends and his ethnic community.

36.  I note that the Applicant prepared the English Supporting Affirmation with assistance of an interpreter. The Applicant had access to language assistance. In such circumstances, it is not reasonably arguable that the alleged lack of language assistance had caused any unfairness to him.

Other complaints against the Board

37.  The Applicant complained that the Board did not consider his claim under Article 1 of the CAT and Section 37U(1) of the Ordinance. The Applicant’s claim under Article 1 of the CAT and Section 37U(1) of the Ordinance had been dealt with by the Director in the CAT Claim. Furthermore, when the Board considered the Applicant’s claim under the BOR 3 risk, the Board had also taken into account the provisions of Article 1 of the CAT and Section37U(1) of the Ordinance. (See §§17-22 of the Board’s Decision.) As such, the Applicant’s aforesaid complaint lacked factual basis and is not reasonably arguable in his intended judicial review.

38.  The Applicant also complained that the Board failed to meet the high standard of fairness and failed to conduct any investigation, research or analysis. There were breaches of procedural fairness.

39.  The Applicant provided no particulars or specifics for the aforesaid complaints in the Form 86 or the Supporting Affirmation. They were bare assertions without supporting evidence. The Applicant failed to attend the Court Hearing to provide supporting to substantiate his contentions. Such bare assertions without particulars are not reasonably arguable in his intended judicial review.

40.  The Applicant reiterated his claims in the Statement. He maintained that he still faced risk from CB and as minority Hindu community. He disagreed to the Board’s assessment of the risk of harm faced by him in his home country.

41.  As pointed out in the Nupur Mst case (supra), assessment of evidence, country of origin information materials, risk of harm, state protection and viability of internal relocation 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.

42.  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.

The Board’s findings and the court’s decision

43.  In §§29-124 of the Board’s Decision, the Board conducted a thorough analysis of the Applicant’s stories against information obtained from objective sources. It accepted that a prominent thug of the same name as CB operated around the area near the ACS. It also accepted that CB was apparently associated with the AL and had powerful connections, which allowed him to rise up to prominent positions despite his history with criminal activities (§127 of the Board’s Decision). However, for reasons set out in §§129-139 of the Board’s Decision, the Board had considerable number of concern about the credibility of other aspects of the Applicant’s claim and evidence.

44.  The Board did not accept the events that allegedly happened to the Applicant’s family as truthful and did not accept that he or his family had been harassed or harmed by CB or his thugs. The Board further rejected the Applicant’s claim that he had been wrongly accused of murder and had an outstanding warrant against him.

45.  The Board did not accept that the Applicant faced any threat of serious or significant harm at the hands of either CB and his associates or from the Bangladeshi authorities for the reasons claimed in the event that he returned to Bangladesh. The Board also did not accept that the Applicant had ever experienced any serious or significant harm in the past because of his religion or that he faced more than a remote prospect of experiencing such harm in the event that he returned to Bangladesh. The Board was not satisfied that there were real or substantial reasons to find that the Applicant faced more than a remote possibility of being subjected to serious or significant harm in Bangladesh for the reasons claimed.

46.  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 (other than the CAT Claim) 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.

47.  The Board was not satisfied that the Applicant faced a genuine and substantial risk of being subjected to the BOR 3 risk if he returned to Bangladesh. The Board was also not satisfied on evidence before the Board that the Applicant faced a real risk of being arbitrarily deprived of his life, having the death penalty imposed on him, or otherwise being deprived of his rights under BOR 2. The Board was also not satisfied on the evidence before the Board that the Applicant had a well-founded fear of being persecuted in Bangladesh whether for any of the Refugees Convention grounds or for any other reason.

48.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under the applicable grounds (other than the CAT Claim) 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 NRC. 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

49.  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 NRC, 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