UDDIN NAZIM v. TORTURE CLAIMS APPEAL BOARD

HCAL 2085/2019

[2025] HKCFI 5652

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2085 OF 2019

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 27 June 2019”.

2.  The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

3.  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 22 July 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of following:-

“The decision made on unknown date but notified to Applicant on 19 of July 2019.

The decision of the torture claims appeal Board/ Adjudicator, made on 27 day of June 2019 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 27 June 2019 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 12 November 2018 (“the Director’s Decision”). 

3.  In the applicant’s supporting affirmation dated 22 July 2019, under the heading “FACTUAL BAKGROUND AND CHRONOLOGY”, the applicant stated in paragraph 8 thereof that he got the Board’s Decision on 19 July 2019.  Thus, it is clear that the Leave Application is 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/2019/HCAL002085_2019_files/the_Board's_Decision.pdf

4.  The Board found that the applicant’s appeal/petition against the Director’s Decision failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Thus, the Board confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.

Amendments

5.  In Form 86, the applicant named “Tonino Caravella, 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. 

6.  Mr Caravella 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.

7.  This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

8.  As aforesaid, the decision in respect of which relief is sought should be “Torture Claims Appeal Board’s decision dated 27 June 2019”.  Thus, on this court’s own motion, it is so amended.

The applicant’s case

9.  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.

10.  In sum, the applicant claimed for non-refoulement protection because he was in fear of harm from Enamul Harue (“Enamul”) upon his return to Bangladesh.  Enamul was the chairman of the Bamoi Union in his village and was affiliated with the Awami League.  The applicant claimed that in mid-2012, Enamul borrowed $5,000 from him but denied that he had done so.  When the applicant approached Enamul for repayment, Enamul together with five people beat the applicant and brought 200 to 250 people to his home to look for him.  As the applicant was not at home, Enamul and the others vandalized and ransacked his home and set fire to 3 of the rooms.

Withdrawal of the Leave Application and removal of the applicant

11.  By way of an affirmation dated 21 October 2019, the applicant made an ex parte application to withdraw the Leave Application.  He stated in the affirmation that he wanted to go back to his home country as soon as possible.

12.  On 28 October 2019, in response to the applicant’s said affirmation, DHCJ Lung gave the following direction:-

“Your application for withdrawal can be dealt with by you writing a letter with your signature to the court confirming that you agree that the court may deal with your application on paper and you agree that your application may be dismissed by the court for the reason that you wish to withdraw your application.”

13.  The above direction was conveyed to the applicant by way of this court’s letter dated 29 October 2019 to the applicant at his reported address.  However, the applicant did not respond to the letter.

14.  Before the applicant’s withdrawal application was further dealt with by this court, the Director notified this court by way of a letter dated 29 August 2025 that the applicant had been removed from Hong Kong on 12 February 2020.

15.  There is no evidence to show that the applicant made the above withdrawal application other than out of his own volition.  With the withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing for the Leave Application.  With his removal, it is also not necessary for this court to afford him any oral hearing for the Leave Application even though he had requested one before.

16.  However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

17.  Thus, it is not right to leave the action at large by granting leave to withdraw to the applicant.  Despite the removal of the applicant, this court will still proceed to determine the merits of the Leave Application.

Grounds for judicial review

18.  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).

19.  The applicant annexed a document to his 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 22 July 2019, which basically complained about the lack of legal assistance and language assistance, and the lack of time for preparation of his appeal.

20.  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

21.  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”.

22.  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.

23.  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 against the Director’s Decision to the Board on 22 November 2018.  His case was arranged to be heard by the Board on 6 May 2019.  Clearly, he had more than 5 months to prepare for his appeal/petition against the Director’s Decision.  If he had any further evidence to produce to the Board, he had ample time and opportunity to do so.

24.  This court also notes from the Board’s Decision that the applicant did not appear before the Board at the Board’s hearing on 6 May 2019.  However, the applicant stated in paragraph 10 under the heading “FACTUAL BAKGROUND AND CHRONOLOGY” in his affirmation dated 22 July 2019 that he “answered all the questions with honestly and it aggravates him that his credibility was found questionable. (He) strongly believes that it was an unfair hearing due to the lack of care by the Torture Claims Board to make appropriate arrangements in relation to the hearing bundle”.

25.  The applicant’s statement above is utterly untrue as he did not even attend the Board’s hearing but claimed that he had answered the Board’s questions honestly.

26.  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.

27.  As to the complaint of the lack of legal assistance, the applicant was assisted by Messrs Wai & Co, Solicitors, in the first tier of the screening process when his non-refoulement claim was assessed by the Director. 

28.  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.

29.  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.

30.  This court finds that none of the grounds asserted by the applicant constitutes a valid ground to challenge the Board’s Decision.

31.  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).

32.  Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

33.  As aforesaid, the applicant was afforded an oral hearing before the Board on 6 May 2019 but he was absent at the hearing.

34.  The Board had given detailed reasons in paragraphs 8-17 and 40-42 of the Board’s Decision as to why it did not accept the applicant’s explanations for his absence and proceeded to determine the applicant’s appeal/petition based on all the materials before it.

35.  This court finds the reasons given by the Board justified.

36.  The Board found significant inconsistencies and implausibilities in the applicant’s claims and thus did not find them to be credible.

37.  As to the applicant’s claimed incident that Enamul came with around 5 people and inflicted a beating on him, the Board was not persuaded by the evidence before it that the incident in fact occurred as the Board see no motive for Enamul to do that when he had clearly communicated his intention to default on the loan.

38.  The Board also considered the applicant’s claim that Enamul was affiliated with the Awami League, but rejected that the applicant would be targeted for serious harm or death for reasons of his membership of the Bangladesh Nationalist Party.

39.  After considering the amount of money involved (which was comparatively small) and Enamul had clearly decided that he was not going to repay, the Board did not accept that Enamul would marshal 200 to 250 people to descend on the applicant’s house as claimed. Without any credible evidence from the applicant to support this claim, the Board found that this incident was a concocted fabrication for the purposes of bolstering the applicant’s claims for non-refoulement.

40.  The Board also refused to accept that the applicant was forced to leave his home area and relocate to Muriak, Moulivi or Comilla, or anywhere else, for reason of any threat from Enamul or anyone associated with Enamul.

41.  The Board thus concluded that, even on the low standard of proof applicable, that the suggestion of any risk to the applicant in his circumstances was far-fetched and fanciful.

42.  Despite its finding and conclusion as summarised above, the Board did assess the viability of internal relocation for the applicant and found that it was entirely reasonable and would not be unduly harsh.

43.  Furthermore, the Board found that although police protection might not be perfect in Bangladesh, there was no evidence before it to suggest that adequate police protection would be withheld from the applicant for any reason.

44.  Taking the above into account, the Board found that there were no substantial grounds for believing that the applicant would suffer any proscribed forms of harm upon refoulement.

45.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board.  The Board was entitled to make its own decision.  This court finds nothing wrong or unreasonable in the way the Board reached its decision.

46.  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.

47.  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

48.  For reasons aforesaid, the application to withdraw the Leave Application is refused and 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