HCAL1026/2020 S M KAWSAR AHAMMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE - LawHero
HCAL1026/2020
高等法院（行政）Deputy High Court Judge (Non-Refoulement Claims) Lewis Law2/9/2025[2025] HKCFI 3933
HCAL1026/2020
HCAL 1026/2020
[2025] HKCFI 3933
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1026 of 2020
BETWEEN
S M Kawsar Ahammed Applicant
And
Torture Claims Appeal Board / Putative
Non-Refoulement Claims Petition Office Respondent
And
Director of Immigration Putative
Interested Party
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 the Applicant in open court;
Order by Deputy High Court Judge (Non-Refoulement Claims) Lewis Law:
1. The Applicant’s Form 86 be amended to name the TCAB as the putative respondent;
and
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
1. By a Form 86 filed on 28 May 2020 (“Form 86”), the Applicant sought leave for
judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims
Petition Office (“TCAB”) made on 14 May 2020 (“the TCAB Decision”). A copy of the
TCAB Decision can be viewed by the following hyperlink1.
1
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001026_2020_files/the_Board's_Decision.p
df
1
2. The TCAB Decision was made pursuant to a petition/appeal from a decision of the
Director of Immigration (“DI”) dated 21 September 2018. The Applicant named both the
TCAB and the DI as the putative respondent and the DI as the putative interested party.
I amended the Form 86 on my own motion to name only the TCAB as the putative respondent.
3. The Applicant is a Bangladeshi national. He claimed to be a member of a political
party called Bangladesh Nationalist Party (“BNP”) and was appointed as the Public Relation
Secretary in Dhaka. The Applicant also stated that the cousin of his wife was a government
minister. His non-refoulement claim was based on an alleged risk of (i) being harmed or killed
by the affiliates of a political party called Awami League (“AL”), and (ii) being framed up with
some false cases.
4. The Applicant has set his ground on which relief is sought in the supporting
affirmation of this leave application. The Applicant complained that no lawyer was provided to
him for advice during the TCAB hearing. In the oral hearing before me, the Applicant stated
that he had nothing to say.
5. On the ground concerning legal assistance, the Court of Appeal has repeatedly held
that neither the high standard of fairness laid down in Secretary for Security v Sakhevel
Prabakar (2004) 7 HKCFAR 187 nor FB & Ors v Director of Immigration & Anor [2009] 2
HKLRD 346 required a non-refoulement claimant to have an absolute right to free legal
representation at all stages of the proceedings (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). The real question is whether the Applicant was prejudiced.
6. The Applicant failed to show how his case would be prejudiced by the lack of legal
representation. His primary materials, including the non-refoulement claim form and the
answers in the DI’s screening interview were given at a time he was under legal representation.
In the TCAB hearing, although the Applicant was not legally represented, he was able to give
answers to the TCAB’s queries and make representation in the TCAB hearing with the
assistance of an interpreter. The Applicant suffered no real prejudice due to a lack of legal
assistance in preparing for the appeal and during the hearing before the TCAB.
7. The TCAB conducted a hearing to inquire into the facts of the Applicant’s claim.
The TCAB stated the applicable legal principles in the TCAB Decision and set out the
Applicant’s case comprehensively. The TCAB found that the Applicant’s evidence is
incredible in that he was only able to provide very limited publicly available documentary
information but no detail. The TCAB did not consider the Applicant’s union level position to
be one that was high-profiled or senior, and found that he provided inconsistent versions of
different events to the TCAB (including the police search at his home in 2009).
8. While the TCAB accepted that the Applicant might have some past involvement in
the BNP possibly prior to his first travel to Hong Kong in 1993, the TCAB was not satisfied
that he was still involved in BNP after he returned to Bangladesh from Hong Kong in 2007. He
had been physically in Hong Kong since around 2008. It was on those bases the TCAB found
that even if taking the Applicant’s claim at the highest, the Applicant was not subject to any real
risk of ill-treatment, torture, persecution or violation of fundamental rights if he returns to his
home country.
9. I have reviewed the TCAB Decision vigorously. In my judgment, the TCAB
Decision was based on sound factual findings and there was no apparent legal error in the
decision. These findings were within the TCAB’s discretion and supported by evidence.
2
10. It has been reiterated time and again that the primary responsibility for the factual
assessment of whether any future risk of ill-treatment exists if an applicant returns to his/her
home country lies with the TCAB. In the absence of any errors of law, procedural unfairness or
irrationality, the Court would not reopen the TCAB’s findings or make a determination on the
case afresh. The role of the Court in a judicial review is not to provide a further avenue of
appeal (see Re Lakhwinder Singh [2018] HKCA 246).
11. The leave application to apply for judicial review is thus dismissed.
Dated the 2nd day of September 2025
(Cheung Ho Yat, Annson)
for Registrar, High Court
3
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
Notes for the Applicant:
If leave has been granted, the
Applicant or the Applicant’s
solicitors must:
a) serve on the respondent Sent to the Applicant Sent to the Putative Respondent /
and such interested parties on 2 September 2025 the Putative Respondent’s
as may be directed by the solicitors / such Putative
Court the order granting S M Kawsar Interested Parties as may be
leave and any directions Ahammed directed by the Court / the
given within 14 days after Putative Interested Parties’
the leave was granted Applicant’s ref. no.: solicitors on 2 September 2025
(Order 53, rule 4A); Nil.
Torture Claims Appeal Board/
b) issue the originating Non-Refoulement Claims Petition
summons within 14 days Office
after the grant of leave and Putative Respondent’s ref. no.:
serve it in accordance with USM 13699/18/10/41/B1582
Order 53, rule 5; and
Director of Immigration
c) supply to every other party Putative Interested Party’s ref.
copies of every affidavit no.:
which the Applicant QA T/C 3022/18 (formerly
proposes to use at the RBCZ 11257/15) [T5 S135]
hearing, including the
affidavit in support of the Department of Justice,
application for leave Senior Assistant Law Officer
(Order 53, rule 6(5)). (Civil Law)
(Civil Litigation Unit 2)
____________________________________________________________________________
Form CALL-1
4
S M KAWSAR AHAMMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
HCAL 1026/2020
[2025] HKCFI 3933
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1026 of 2020
BETWEEN
S M Kawsar Ahammed Applicant
And
Torture Claims Appeal Board / Putative
Non-Refoulement Claims Petition Office Respondent
And
Director of Immigration Putative
Interested Party
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 the Applicant in open court;
Order by Deputy High Court Judge (Non-Refoulement Claims) Lewis Law:
1. The Applicant’s Form 86 be amended to name the TCAB as the putative respondent;
and
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
1. By a Form 86 filed on 28 May 2020 (“Form 86”), the Applicant sought leave for
judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims
Petition Office (“TCAB”) made on 14 May 2020 (“the TCAB Decision”). A copy of the
TCAB Decision can be viewed by the following hyperlink1.
1
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001026_2020_files/the_Board's_Decision.p
df
1
2. The TCAB Decision was made pursuant to a petition/appeal from a decision of the
Director of Immigration (“DI”) dated 21 September 2018. The Applicant named both the
TCAB and the DI as the putative respondent and the DI as the putative interested party.
I amended the Form 86 on my own motion to name only the TCAB as the putative respondent.
3. The Applicant is a Bangladeshi national. He claimed to be a member of a political
party called Bangladesh Nationalist Party (“BNP”) and was appointed as the Public Relation
Secretary in Dhaka. The Applicant also stated that the cousin of his wife was a government
minister. His non-refoulement claim was based on an alleged risk of (i) being harmed or killed
by the affiliates of a political party called Awami League (“AL”), and (ii) being framed up with
some false cases.
4. The Applicant has set his ground on which relief is sought in the supporting
affirmation of this leave application. The Applicant complained that no lawyer was provided to
him for advice during the TCAB hearing. In the oral hearing before me, the Applicant stated
that he had nothing to say.
5. On the ground concerning legal assistance, the Court of Appeal has repeatedly held
that neither the high standard of fairness laid down in Secretary for Security v Sakhevel
Prabakar (2004) 7 HKCFAR 187 nor FB & Ors v Director of Immigration & Anor [2009] 2
HKLRD 346 required a non-refoulement claimant to have an absolute right to free legal
representation at all stages of the proceedings (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). The real question is whether the Applicant was prejudiced.
6. The Applicant failed to show how his case would be prejudiced by the lack of legal
representation. His primary materials, including the non-refoulement claim form and the
answers in the DI’s screening interview were given at a time he was under legal representation.
In the TCAB hearing, although the Applicant was not legally represented, he was able to give
answers to the TCAB’s queries and make representation in the TCAB hearing with the
assistance of an interpreter. The Applicant suffered no real prejudice due to a lack of legal
assistance in preparing for the appeal and during the hearing before the TCAB.
7. The TCAB conducted a hearing to inquire into the facts of the Applicant’s claim.
The TCAB stated the applicable legal principles in the TCAB Decision and set out the
Applicant’s case comprehensively. The TCAB found that the Applicant’s evidence is
incredible in that he was only able to provide very limited publicly available documentary
information but no detail. The TCAB did not consider the Applicant’s union level position to
be one that was high-profiled or senior, and found that he provided inconsistent versions of
different events to the TCAB (including the police search at his home in 2009).
8. While the TCAB accepted that the Applicant might have some past involvement in
the BNP possibly prior to his first travel to Hong Kong in 1993, the TCAB was not satisfied
that he was still involved in BNP after he returned to Bangladesh from Hong Kong in 2007. He
had been physically in Hong Kong since around 2008. It was on those bases the TCAB found
that even if taking the Applicant’s claim at the highest, the Applicant was not subject to any real
risk of ill-treatment, torture, persecution or violation of fundamental rights if he returns to his
home country.
9. I have reviewed the TCAB Decision vigorously. In my judgment, the TCAB
Decision was based on sound factual findings and there was no apparent legal error in the
decision. These findings were within the TCAB’s discretion and supported by evidence.
2
10. It has been reiterated time and again that the primary responsibility for the factual
assessment of whether any future risk of ill-treatment exists if an applicant returns to his/her
home country lies with the TCAB. In the absence of any errors of law, procedural unfairness or
irrationality, the Court would not reopen the TCAB’s findings or make a determination on the
case afresh. The role of the Court in a judicial review is not to provide a further avenue of
appeal (see Re Lakhwinder Singh [2018] HKCA 246).
11. The leave application to apply for judicial review is thus dismissed.
Dated the 2nd day of September 2025
(Cheung Ho Yat, Annson)
for Registrar, High Court
3
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
Notes for the Applicant:
If leave has been granted, the
Applicant or the Applicant’s
solicitors must:
a) serve on the respondent Sent to the Applicant Sent to the Putative Respondent /
and such interested parties on 2 September 2025 the Putative Respondent’s
as may be directed by the solicitors / such Putative
Court the order granting S M Kawsar Interested Parties as may be
leave and any directions Ahammed directed by the Court / the
given within 14 days after Putative Interested Parties’
the leave was granted Applicant’s ref. no.: solicitors on 2 September 2025
(Order 53, rule 4A); Nil.
Torture Claims Appeal Board/
b) issue the originating Non-Refoulement Claims Petition
summons within 14 days Office
after the grant of leave and Putative Respondent’s ref. no.:
serve it in accordance with USM 13699/18/10/41/B1582
Order 53, rule 5; and
Director of Immigration
c) supply to every other party Putative Interested Party’s ref.
copies of every affidavit no.:
which the Applicant QA T/C 3022/18 (formerly
proposes to use at the RBCZ 11257/15) [T5 S135]
hearing, including the
affidavit in support of the Department of Justice,
application for leave Senior Assistant Law Officer
(Order 53, rule 6(5)). (Civil Law)
(Civil Litigation Unit 2)
____________________________________________________________________________
Form CALL-1
4