ISLAM MOHAMMAD ASADUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1034/2020

[2025] HKCFI 3936

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1034 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 the Applicant in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  By a Form 86 filed on 29 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 22 May 2020 (“the TCAB Decision”). A copy of the TCAB Decision can be viewed by the following hyperlink[1].

2.  The TCAB Decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 28 December 2018. The TCAB and the DI are respectively the putative respondent and putative interested party to this application.

3.  The Applicant has failed to identify any alleged errors of law, irrationality or procedural unfairness on the part of the TCAB in reaching the TCAB Decision to make good his challenge, either in the Form 86 or the supporting affirmation.

4.  The Applicant is a Bangladeshi national. He claimed to be an ordinary member of a political party called Jatiya Party (Zafar). His non-refoulement claim was based on an alleged risk of being harmed or killed by the affiliates of a rival political party called Awami League (“AL”), for refusing to join AL.

5.  In the oral hearing before me, the Applicant stated that he had nothing to say.

6.  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 internal inconsistency in the Applicant’s assertions – on the one hand he had no difficulty leaving the country, but on the other hand he alleged he could be located easily. Holding that the Applicant’s influence was limited to locality, the TCAB was not convinced that the people in AL would go so far to torture or seriously harm him. It was on such bases the TCAB found the Applicant not subject to any real risk of ill-treatment, torture, persecution or violation of fundamental rights if he returns to his home country.

7.  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.

8.  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).

9.  The leave application to apply for judicial review is thus 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