Iddrish Pramanik v. Torture Claims Appeal Board
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HCAL 2237/2024 [2026] HKCFI 5663 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2237 OF 2024 BETWEEN
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 22 November 2024, 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 6 November 2024 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant’s claim for non-refoulement protection failed on the all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 27 June 2024, which rejected the applicant’s non-refoulement claim. Amendments 3.In Form 86, the applicant named “TCAB / Non Refoulment Claims Petition office / Director Of Immigration” as the putative respondents, and “Torture claims Appeal Board / Non Refoulment Claims Petition office / Director of Immigration” as the putative interested parties. 4.In fact, only the Board should be named as the putative respondent, and only the Director should be named as the putative interested party. 5.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative party at all. 6.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, and the name of the putative interested party to “Director of Immigration”. The applicant’s case 7.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. 8.In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, he would be harmed or killed by: (1) people of Awami League (“AL”) due to his affiliation with the Bangladesh Nationalist Party; and (2) Amir Mollah (“the creditor”) due to his default in loan repayment. Disposal on paper 9.The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper. Grounds for judicial review 10.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). 11.The applicant did not advance any grounds for his intended judicial review in Form 86. 12.In his supporting affirmation dated 22 November 2024, the applicant stated that the Board’s Decision was unreasonable in that it failed to consider all the matters raised in his claims and/or give adequate reason for decision. Discussion 13.First of all, the applicant’s allegations made in his supporting affirmation were advanced without any particulars. He only alleged that the Board’s Decision was unreasonable without stating what matters raised by him were not considered and/or how the Board failed to give adequate reasons. 14.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”. 15.Contrary to the applicant’s accusations, this court notes from the Board’s Decision that the Board had indeed fully considered both limbs of the applicant’s claims, including his fear of the people of AL and his fear of his creditor. 16.Moreover, this court found that the Board had given full and justified reasons in rejecting the applicant’s claim for non-refoulement protection in Hong Kong on each and every applicable ground under the USM. 17.Thus, this court is of the view that the applicant’s claims had been duly considered but rejected by the Board. If he intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. 18.Thus, none of the matters asserted by the applicant in his supporting affirmation constitutes a valid ground to challenge the Board’s Decision. 19.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). 20.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. 21.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 30 October 2024 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person. 22.As can be seen from the Board’s Decision, the Board had duly considered both limbs of the applicant’s claim, namely his risk of being harmed or killed by AL people and by his creditor. The Board had also assessed the applicant’s claimed ill-treatment in the past from both the AL people and his creditor. 23.With regards to the applicant’s fear of returning to Bangladesh due to the people of AL, the Board found that the discharge certificate submitted by the applicant in relation to the first assault by AL people on 15 January 2023 revealed that the applicant was not telling a truthful or correct version as to the period of hospitalization. The document indicated that what the applicant told the Board as to the number of days staying in the hospital was exaggerated. Moreover, the Board found that evidence showed that the AL people had no real intention to cause the applicant serious harm or kill him, as they had plenty of opportunities to do so during the first and second assault, but they did not (see paragraphs 72 to 75 of the Board’s Decision). 24.The applicant claimed that the police in the Khankhanapur police station refused to take up the case for him in the two attacks by AL people and the vandalization of his shop. However, the Board found no evidence to show acquiescence or failure of due diligence, as the inaction of the officers in the Khankhanapur police station was an individual case which did not represent the stance or policy of the whole Bangladeshi police forces or government authorities. 25.As to the applicant’s fear of his creditor, the Board found that there was no evidence to show that the applicant had personally encountered the creditor who only contacted him by phone and issued death threats verbally. There was no further information to show that the creditor was as powerful and influential as the applicant claimed. Further, the applicant’s dispute with the creditor was only a private financial dispute that had nothing to do with any political or state interest or policy. 26.The Board also explicitly stated in paragraph 80 of the Board’s Decision that even if the Board accepted the applicant’s evidence that he was threatened by his creditor and assaulted by the AL members, the Board found that he had never established a level of severity of pain or suffering, whether physical or mental, as required by the law to qualify as torture. 27.The Board had also gone through very extensive country of origin information (“COI”) in its assessment of the availability of state protection to the applicant in paragraphs 81 to 99 of the Board’s Decision, and found that there was reasonable state protection available to the applicant upon his return to Bangladesh. 28.Moreover, the Board had given full reasons in paragraphs 101 to 106 of the Board’s Decision for its conclusion that the applicant would have no difficulty in re-establishing his career in Chittagong or Bogra, where he could find job easily and also avoid the alleged risk of AL people and his creditor. 29.Thus, the Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM. 30.The assessment of evidence, COI and risk of harm was primarily within the realm of the Board in dealing with the applicant’s petition. 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. 31.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. 32.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 33.For reasons aforesaid, the Leave Application is dismissed. Dated the 7th day of October 2026
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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