JAKIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 543/2021

[2026] HKCFI 1236

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 543 OF 2021

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:

Introduction

1.  By a Form 86 filed on 19 April 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 25 March 2021 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 20 April 2017 (the “DOI Decision”).

2.  The Applicant requested for a hearing of this application and he attended the same. When asked whether he had anything to add, he said that the situation in his home  country remained  horrible. His elder brother had been abducted 4-6 months ago, and his life would be in danger were he to be refouled. He would like to submit documents regarding the abduction of his brother concerning the report to the police station and relevant news. He also added that he had 2 young children and his family were here in Hong Kong. He was given 1 month to submit any further documents.  To date, he has failed to do so.

Background

3.  The Applicant is a national of Bangladesh. The Applicant’s case is based upon his fear that if he were to return to his home country, he would suffer huge injustice and grave harm as he would be targeted by AL due to his position in the BNP and has a false murder charge against him. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them. Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

Discussion

4.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

5.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and this court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

7.  The Applicant did not state any grounds on which the relief is sought, and hence did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

8.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all applicable grounds[2] under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [94-107]. In particular, the TCAB found that (1) the Applicant continued to make assertions without objective support even when specifically asked to do so, including the fundamental point concerning his position in the BNP [66-69]; (2) his evidence was inconsistent in respect of the centrepieces of his case, including whether he was the President of the BNP [71, 72]; and (3) his assertions were “highly improbable if not fanciful” [83]. Thus, it was inevitable for the TCAB to conclude that the Applicant case was “fabricated” or “wholly unreliable” [86], and, having taken into account the country of origin evidence, his case was bound to fail.

9.  I have carefully considered his oral submissions. Not only that his oral submissions are unsupported by any evidence, but also that it would not affect the outcome his application given the assessment of his credibility by the TCAB, as stated above. If there are any material change of circumstances (which is not supported in any event), it is not a matter for this Court to decide at this stage.

10.  The Applicant’s family circumstances in Hong Kong are not valid grounds or relevant consideration in relation to his own non-refoulement claim: Oguzie Ikechukwu Charles v Torture Claims Appeal Board, unreported, CACV 469/2021, 21 January 2022, [2022] HKCA 135, at [20].

11.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review 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

Form CALL-1