Sumon Barua v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 643/2020

[2025] HKCFI 4281

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 643 of 2020

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

Following:

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

Order by Deputy High Court Judge Levy:

1.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

2.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

3.  Costs be in the cause of the proceedings, and the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

Observations for the Applicant:

A.  Introduction

1.By a “Notice of application to apply for leave to judicial review” in the prescribed Form 86 filed on 15 April 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 6 April 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 12 October 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000643_2020_files/the_Board's_Decision.pdf

2.The applicant was granted legal aid and later assigned counsel respectively on 8 April and 4 June 2025. On 23 July 2025, the court granted leave to the applicant to amend his Form 86. Before the hearing on 6 August 2025, the applicant had amended his Form 86 (“Amended Form 86”) and lodged hearing bundles (“HB”) together with written submissions (“Skeleton”) and the list of authorities of his assigned counsel, Mr Jonathan Kwok.

3.The applicant was an ordained Buddhist monk. The basis of the applicant’s claim was that if refouled, he would be harmed or killed by the Jamaat-ul-Mujahideen Bangladesh (“JMB”) and other Muslim organizations. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

B.  Applicant’s grounds of review

4.In the Amended Form 86, the applicant advanced the following grounds in support of the Leave Application.

(1)  Ground 1: Error of law in,

(a)  Misapplying the “reasonably tolerable” test in assessing risk of religious persecution; and/or

(b)  Requiring the applicant to conceal or otherwise alter his way of manifesting his religious beliefs, contrary to the established legal principles on assessing risk of religious persecution.

(2)  Ground 2: Erroneous assessment of state protection. In assessing the availability of state protection, the Board failed to:

(a)  Sufficiently assess the issue with reference to the relevant COI;

(b)  have the assessment supported by adequate reasons.

(3)  Ground 3: Erroneous assessment of internal relocation. The Board failed to make sufficient enquiries about the influence of the applicant’s persecutor(s), and his personal circumstances.

C.  The applicant’s life as a Buddhist monk and the risk that entailed

5.To put the applicant’s grounds for the Leave Application in context, it is necessary to discuss his personal background and claims. The Board accepted that the applicant, whilst living in a small monastery in Putibila in the east of Bangladesh as a Buddhist monk of the Theravada tradition, he taught local Buddhist children about Buddhism and meditation. In 2012, there was an unrest triggered by a widespread retaliation by Muslims against Buddhists, and the applicant started to receive threats, including death threats, from JMB and other Muslim organizations because of his teaching. In 2017, a group of Muslims arrived at the applicant’s temple with hockey sticks and sharp weapons. The applicant fled with the children but the monastery was vandalized. The Board therefore needed to consider the risk the applicant would face if he were to return to his country to continue teaching.

6.The Board accepted that if the applicant returned to Putibila and resumed his teaching, the same attackers might start harassing him again and, if he persisted, could attack him again. The Board stated (at Board’s Decision [81]) that “if there is a risk he could avoid it by not teaching”. Notwithstanding the lack of clear evidence that the applicant had not said whether he would resume teaching if refouled, the Board accepted that teaching was important to the applicant, and hence it believed that he would resume teaching. After having considered and applied the case of HJ v Iran [2009] EWCA Civ 172 (the decision of the UK Court of Appeal)[1] (“HJ (Iran) CA”), the Board concluded that the applicant could be reasonably expected to tolerate living as a monk without teaching “and so could avoid any risk that might arise” (Board’s Decision at [81] to [85]).

D.  Discussion

7.It is trite that a Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2] It is sufficient to state my observations in respect of each of the above grounds after considering the Board’s Decision and the applicant’s materials adduced.

D.1  Ground 1: Error of law

8.In this, essentially the principal, ground of the Leave Application, the applicant argued that the Board had made an error in its application of the principle of the “reasonably tolerable” test stated in HJ (Iran) CA by concluding that the applicant could reasonably be expected to tolerate living as a monk without teaching.

9.Mr Kwok submitted that the Board’s application of the “reasonably tolerable” test elucidated in the HJ (Iran) CA was a fundamental error as the case ultimately reached the UK Supreme Court (“UKSC”). The UKSC unanimously allowed the claimants’ appeals: HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596 (“HJ (Iran) UKSC”). In setting aside the decision of the HJ (Iran) CA, the court in HJ (Iran) UKSC expressly rejected the reasonably tolerable test.

10.Mr Kwok submitted that the Board’s conclusion based on the application of HJ (Iran) (CA) requiring the applicant to give up teaching was prima facie in conflict with the approach enunciated in HJ (Iran)UKSC.

11.In HJ (Iran) UKSC , Lord Roger set out (at [82]) comprehensively the correct approach to be adopted when a tribunal assesses a claimant’s fear of persecution because of a person’s sexual orientation:

“[82] When an applicant applies for asylum on the ground of a well‑founded fear of persecution because he is gay, the tribunal must first ask itself whether it is satisfied on the evidence that he is gay, or that he would be treated as gay by potential persecutors in his country of nationality. If so, the tribunal must then ask itself whether it is satisfied on the available evidence that gay people who lived openly would be liable to persecution in the applicant’s country of nationality. If so, the tribunal must go on to consider what the individual applicant would do if he were returned to that country. If the applicant would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well‑founded fear of persecution even if he could avoid the risk by living discreetly. If, on the other hand, the tribunal concludes that the applicant would in fact live discreetly and so avoid persecution, it must go on to ask itself why he would do so. If the tribunal concludes that the applicant would choose to live discreetly simply because that was how he himself would wish to live, or because of social pressures, e g, not wanting to distress his parents or embarrass his friends, then his application should be rejected. Social pressures of that kind do not amount to persecution and the Convention does not offer protection against them. Such a person has no well-founded fear of persecution because, for reasons that have nothing to do with any fear of persecution, he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay. If, on the other hand, the tribunal concludes that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then, other things being equal, his application should be accepted. Such a person has a well-founded fear of persecution. To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect his right to live freely and openly as a gay man without fear of persecution. By admitting him to asylum and allowing him to live freely and openly as a gay man without fear of persecution, the receiving state gives effect to that right by affording the applicant a surrogate for the protection from persecution which his country of nationality should have afforded him…” (Emphasis added)

12.Lord Roger’s reference in HJ (Iran) UKSC on a gay person’s avoidance of persecution “by living discreetly”, can be applied analogously to the Board’s conclusion that the applicant could avoid any risk without teaching. In this present case, the Board had not specifically asked the applicant whether he would or would not resume teaching if refouled. The Board however was prepared to assess the applicant’s case on the basis that the applicant would resume teaching (see Board’s Decision at [82]). Hence, if the principle concerning sexual orientation in HJ (Iran) UKSC is applicable to religious persecution, it is plain that the Board would have been erroneous in applying the wrong “reasonably tolerable” test.

13.According to the authorities Mr Kwok cited, the approach expounded in HJ (Iran) UKSC does apply to the assessment of religious persecution: see Ahmed v Secretary of State for the Home Department [2000] INLR 1; RT (Zimbabwe) v Secretary of State for the Home Department [2013] 1 AC 152; WA (Pakistan) v Secretary of State for the Home Department [2019] EWCA Civ 302; Gur v Canada (Minister of Citizenship and Immigration) [2012] FCJ No 1082.

14.Hong Kong courts have also consistently applied HJ (Iran) UKSC in determining persecution risk [3], and the guiding framework laid down in UNHCR Guidelines on International Protection: Religion-Based Refugee Claims under Article 1A(2)of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees (published on 28 April 2004) for religious persecution. It is therefore reasonably arguable that the Board’s Decision is erroneous, and is tainted with procedural unfairness when requiring the applicant to give up an integral part of his life as a monk to avoid any risks of harm.

D.2  Ground 2: Flawed assessment of state protection

15.In [23] of the Board’s Decision, the Board referred to the principle of surrogacy concerning the duty of the home state to provide protection to its own nationals. The Board referred to the requirement of “sufficient state protection” expounded in the UK House of Lord decision of Horvath v Secretary of State for the Home Department [2001] 1 AC 489.

16.After citing various COI, the Board concluded at [52] of the Board’s Decision that although the minority population was safe in eastern Bangladesh, this did not necessarily apply to monks. The Board believed that the doctrine referred to in Horvath suggested that no state could “provide a complete guarantee of protection”.

17.Mr Kwok submitted that the Board’s conclusion stated at [52] of the Board’s Decision of referring to state protection as not requiring the provision of a complete guarantee of protection was an error of law. It was submitted that the Board had failed to apply the correct principle by assessing whether the state was able to provide “sufficient”[4] and “meaningful” [5]state protection with reference to the relevant COI.

18.Apart from having an error of law, the Board, it was submitted, was also irrational and unreasonable in concluding that state protection was available.

19.It was argued that the Board had failed to refer to the relevant COI, namely the “Country Information and Guidance – Bangladesh: Minority religious groups, March 2016” (“UKHO Country Report 2016”) at [2.4.2], which disclosed that whilst the Bangladeshi authorities implemented some restrictive laws , they did not always efficiently or effectively prosecute those who attacked religious minorities. Since the Board had accepted the applicant’s evidence in relation to the violence towards to and attack on the Monastery, Mr Kwok submitted that the Board’s conclusion was irrational.

20.Worse still, Mr Kwok submitted that the Board had descended into speculation or conjecture when it subjectively surmised that the description of the police having the report of the complaint the applicant made as being “in process” did not mean “inaction” (Board’s Decision at [79]).

21.In my view, there is force in Mr Kwok’s arguments.

22.In the present case, the Board was alive to and in fact accepted the importance of teaching Buddhism to children for the applicant as a Buddhist monk (Board’s Decision at [82]). Hence, the requirement of a decision-maker to apply “anxious scrutiny” by adopting a fair procedure in reaching a rational decision[6] would have obliged the Board to take into account this particular aspect of the applicant’s evidence as the core part of the applicant’s claim when assessing the sufficiency of state protection. This would entail the Board’s careful weighing up of all relevant COI materials, particularly those adverse to the availability of state protection: AM (supra.) at [107] as well as an inquiry into the applicant’s intention as to whether he would be able to abandon the teaching and the impact it might have on him in the event of abandonment.

23.Pertinently, the relevant part of the UKHO Country Report 2016 referred to in [19] above is plainly adverse to the sufficiency of state protection. In my view, the Board’s omission to refer to it would arguably is a failure to observe a high standard of fairness by undertaking a proper and independent assessment before it reached the conclusion stated in [78] of the Board’s Decision.

24.In the present case, given the fact that the Board accepted the applicant’s account of past ill-treatment against the monastery and Buddhist monks including the applicant from the members of the local militants, the JMB, the Board’s assessment of state protection is arguably irrational as there is no consideration as to the harm the applicant feared, which could negate any meaningful protection: see TK v Jenkins [2013] HKC 526 at [49].

25.Worse still, the Board has seemed to have erred in applying its subjective common sense in relation to action the police took by equating “in progress” as not meaning “inaction”(Board’s Decision at [87]); and assuming the police “were not turning a blind eye to crime or terrorist activities” (Board’s Decision at [87]). A decision-maker is not entitled to make his or her own assumptions, conjecture or speculations as to what ought to have happened: ST v Betty Kwan[7] ; later followed by TI v Winston Leung[8] at [61]).

26.In the circumstances, the Board’s assessment of state protection is arguably irrational, and the Board’s Decision is tainted with procedural unfairness.

D.3  Ground 3: erroneous assessment of internal relocation

27.The Board’s assessment and conclusion (Board’s Decision at [99] to [101]) of the reasonable viability of internal relocation was substantially based on the Board’s view of the applicant’s life as a monk. The Board took that view that since the applicant, as a monk, was supported by public donations, he could live anywhere he could get donations and move to a monastery that would take him away from Putibila. After having conducted an internet search showing that Buddhist monasteries existed in Dhaka and Khulna mentioned in the Director’s Decision, the Board concluded that it would not be unreasonable or too harsh to expect the applicant to relocate to avoid the risk in Putibila.

28.Mr Kwok submitted that the Board’s assessment of the internal relocation alternatives was erroneous. It was the applicant’s evidence (which the Board accepted) that JMB members were “spread all over the country” (Board’s Decision at [65]) and that his assailants would find him (Board’s Decision [66]). The Board should have therefore taken into consideration the geographical influence of JMB. Particularly, given the fact that the COI materials before the Board in fact identified the presence of JMB in various areas of the country[9]. Mr Kwok was therefore critical of the Board’s failure to consider the JMB’s extent or influence. The mere description of JMB as “climate local militants” and “a recognized militant group” without referring to its extent and influence (Board’s Decision [75]) in and by itself was an error of law: Md Nazir Ahmed Sarkar v Torture Claims Appeal Board [2021] 5 HKC 237 at [66]-[69]; TK v Jenkins (supra.).

29.It was submitted that not only had the Board failed to address its mind to the influence of JMB, it had also failed to take into consideration the personal circumstances specific to the applicant in making a holistic assessment when assessing whether it would be unduly harsh for the applicant to relocate elsewhere : Sarkar (supra.) at [73]. Mr Kwok submitted that the Board had simply failed to consider pertinent matters as to how a monastery (in other areas) to admit a monk, how a monk could get donations in other parts of the country, and whether the applicant could develop social links outside the Chittagong region: Januzi v Secretary of State for the Home Department [2006] 2 AC 426 , citing the UNHCR Guidelines on International Protection No 4: “Internal Flight or Relocation Alternative” within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees (HCR/GIP/03/03, 23 July 2003).

30.I agree with Mr Kwok.

31.In my view, not only did the Board plainly neglect to consider the extent of the JMB’s influence, it has similarly erred by making assumption that the JMB were only “climate local militants” when the applicant’s evidence and the IOC materials seem to have shown otherwise. The Board’s view on the applicant’s ability to go to any monastery and support himself with donations is unsupported by any evidence. The Board therefore seems to have made a similar error to that discussed in [25] above.

32.In my view, the Board’s assessment on internal relocation appears to be flawed as it has failed to consider the specific risk of harm the applicant would face. I therefore conclude that it is at least arguable that the Board’s conclusion is erroneous.

33.For the above reasons, it seems at least reasonably arguable that the Board’s Decision is wrong at law, tainted by procedural unfairness, and that it does not meet the required high standards of fairness.

E.  Conclusion

34.In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

35.Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s Decision, and direct that he shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Order

36.Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

37.The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

38.Costs be in the cause of the proceedings, and the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

Dated the 25^th day of September 2025

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