SREE BIPAN CHANDRA DAS v. TORTURE CLAIMS APPEAL BOARD

HCAL 1451/2021

[2026] HKCFI 2630

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1451 OF 2021

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 interested party be amended to “Director of Immigration”.

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 19 October 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 23 September 2021 (“the Board’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001451_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant was not at risk on any of the applicable grounds under the Unified Screening Mechanism (“the USM”), and in any event, internal relocation was a reasonable and practicable option for the applicant.  Hence, the Board found that the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 31 May 2021 failed and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendment

3.  In Form 86, the applicant named the Board as both the putative respondent and the putative interested party, when the Board should only be the putative respondent and the Director should be the putative interested party.

4.  Thus, this court makes an order on its own motion to amend the name of the putative interested party to “Director of Immigration”.

The applicant’s case

5.  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.

6.  In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, he would be harmed or killed by (1) Muslims who demanded him to cease promoting Hinduism, as he was the secretary of the local Hindu Temple Committee; and (2) people of the Awami League (“AL”) due to the bitter rivalry between AL and the Bangladesh Nationalist Party (“BNP”), of which the applicant was a member and the assistant to the local party secretary.

Oral hearings

7.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 23 April 2026. 

8.  When this court asked the applicant to elaborate on the grounds that were contained in a document with the title “Grounds on which relief is Sought” and annexed to his Form 86, the applicant merely replied that his problem was political, as he belonged to the minority and it was not safe for the minority when the other party was in power.  He said that he left his country because of that problem and it was difficult for him to stay in Bangladesh.

Grounds for judicial review

9.  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).

10.  The applicant confirmed at the oral hearing before this court that he relied on the grounds stated in the said document with the title “Grounds on which Relief is Sought”.  However, those grounds were all very general and were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions.  It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations.  Nevertheless, as the applicant is relying on the above grounds to make the Leave Application, this court will still deal with the grounds as discussed below.

11.  As aforesaid, the applicant did not elaborate on any of the grounds stated in the said document at the oral hearing.  He merely reiterated that he had political problems and it was difficult for him to stay in Bangladesh.

Discussion

12.  First of all, the applicant’s problems in his country had been duly assessed but rejected by the Board.  If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

13.  As mentioned, all the grounds contained in the document with the title “Grounds on which Relief is Sought” are very general.  There are a total of 11 paragraphs in the document, all listed under the heading “(A) The respondent is in breach of procedural fairness in the following parts”.

14.  Paragraphs 1 and 9 only mentioned that it was trite that a hearing before the Board was a rehearing and that the Board should consider all the facts of the claim afresh.  The applicant in fact did not raise any challenge with regards to this role of the Board.

15.  In paragraphs 2 to 5, the applicant simply stated some general accusations such as the Board’s Decision was unreasonable or irrational in the public law sense, the Board had unlawfully fettered its discretion, the Board failed to meet the greater care and duty owed to self-represented litigants, and the Adjudicator acted in a procedurally unfair manner, etc.  The applicant failed to give any particulars as to how these general accusations were related to his own case.

16.  Similarly, in paragraph 6, the applicant just mentioned the fundamental human rights not to be subjected to torture, but did not specify how such assertion could advance his case.

17.  In paragraph 7, the applicant alleged that there was no indication that the adjudicator interacted with the facts of his claim, conducted any analysis of the supporting documents, or turned his mind to the applicant’s right to life under BOR 2.

18.  This allegation is simply not true.  As can be seen from the Board’s Decision, the Board had duly considered every aspect of the applicant’s claims, including his fear from the Muslims and members of the AL, and carefully analyzed them against country of origin information (“COI”).  The fact that the Board found the applicant not at risk of being arbitrarily deprived of his life does not mean that the Board did not consider his BOR 2 Risk[1].

19.  The applicant complained in paragraph 8 that the Board had relied on source of news which was not officially recognized, or was simply hearsay.  Likewise, he stated in paragraph 10 that the Board had relied on some cases which were outdated.  However, the applicant did not specify which piece(s) of news/cases or COI that the Board relied on were as what he asserted.

20.  In paragraph 11, the applicant merely stated that the Board’s Decision made him disappointed.  It is not a ground at all.

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, none of the matters that were contained in the document with the title “Grounds on which relief is Sought” could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case, or were simply unfounded.

23.  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).

24.  Thus, even though the applicant has failed to establish any valid ground for challenging the Board’s Decision, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

25.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 2 September 2021.  The applicant was present and was thus given the chance to present his case to the Board in person. 

26.  As can be seen from paragraphs 111 to 131 of the Board’s Decision, the Board found that the applicant was not a credible witness after analyzing all aspects of the applicant’s claims and examining his claims against extensive, fully-referenced COI.

27.  The Board found that the applicant’s evidence was sketchy and lacking in particulars and he had testified in a shifty and evasive manner.  There were important inconsistencies in his evidence in which no satisfactory explanation was provided by the applicant.  The Board found that there were conflicts between the applicant’s evidence and the available COI, or at least the applicant’s evidence was not corroborated by the available COI.  There were various important implausibilities in the applicant’s evidence.  There was also a total absence of any documentary support when the applicant could reasonably have produced them.

28.  Together with the applicant’s delay in making a non-refoulement claim after he entered Hong Kong, the Board did not find the applicant to be a credible witness.  The Board found that the applicant had failed to establish the core primary facts of his case on a balance of probabilities.

29.  The Board rejected the applicant’s evidence that (1) he had been a proprietor of a jewellery shop; (2) he had been ill-treated or threatened or harmed by the Muslims in his vicinity or elsewhere because of his Hindu beliefs or practices; (3) he had been a member of the student wing of the BNP or the BNP; (4) he had been active in politics; (5) he was the assistant to and had closely supported and followed a local BNP party secretary called Liton; (6) a fire had broken out in the applicant’s jewellery shop; (7) he had been involved in fights and clashes between BNP supporters and AL supporters in Bangladesh; (8) he had been abducted and false imprisoned and assaulted by some AL people; and (9) he had made any internal relocation in Bangladesh to avoid any danger.

30.  Hence, the Board found that the applicant was not subjected to any threat or danger while he was in Bangladesh and he was not facing any risk or danger.

31.  The Board had discussed the availability of state protection in paragraphs 133 to 143 of the Board’s Decision.  On the basis of its findings that the applicant had not been subjected to any harm and would not be subjected to any risk or harm in the future, the Board found that the applicant would be able to access reasonable state protection upon his return.

32.  The Board noted that given its findings, it was not strictly necessary to assess the viability of internal relocation for the applicant.  Nevertheless, the Board did explicitly do so for the sake of completeness and on the assumption that the applicant had been ill-treated in the past as he had so asserted.  The Board had given its full reasoning in paragraphs 145 to 152 of the Board’s Decision in concluding that internal relocation was a reasonable, safe and practicable option for the applicant.

33.  Thus, the Board found that the applicant had not made out a case for non-refoulement protection on any of the applicable grounds under the USM.

34.  The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit 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 conclusion.

35.  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. 

36.  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

37.  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

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