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

HCAL 1415/2020

[2025] HKCFI 3587

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1415 of 2020

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

Following;

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

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 8 July 2020 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 3 July 2020 (the “Board’s Decision”).

2.  An oral hearing was requested by the Applicant. It took place before me on 25 July 2025 (the “Hearing”) and the Applicant attended in person.

Background

3.  The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference. In short, the Applicant claimed that, if he were to return to Bangladesh, he would be killed by associates of the Awami League Party (“AL”) because he was a Hindu and he belonged to the Bangladesh Nationalist Party (“BNP”) which is a political rival of the AL.

Discussion

4.  The applicable legal principles relating to this type of applications are well established. The judicial review is not a further avenue of appeal. Though in non-refoulement cases, the Court will adopt a high standard of fairness to review the decision of the Board with anxious scrutiny due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (“COI”) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board, see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

5.  It is well-established that:-

(1)  determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

(2)  An applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection HCAL 21/2015 (22 December 2016, unreported) per Chow J (as he was then) at §142.

6.  In the Form 86 and his affirmation in support, the Applicant did not provide any grounds in support of the Leave Application.

7.  At the Hearing, the Applicant said he had nothing further to add.

8.  Notwithstanding the Applicant’s failure to identify his grounds of review, I have considered the Board’s Decision in detail. I do not find any error of law, procedural unfairness or irrationality. There is nothing to indicate that the Board had failed to take into account any relevant matters or that it had taken into account irrelevant matters.

9.  The Board’s Decision was comprehensive with adequate reasons provided. In particular:-

(1)  The Board was plainly correct in finding that the risk of harm was low as there was nothing in the Applicant’s personal circumstances that would make him face more risk than the other Hindus in Bangladesh (§§83-87), given that the material aspects of the Applicant was highly problematic. For example, the Applicant had little knowledge about the basic information of BNP despite claiming to be an active member (§§79-80). The Applicant’s account of the relationship between BNP and AL was also contradicted by reliable COI which indicates that Hindus have generally served as supporters of the AL (§83).

(2)  I also see no basis to interfere with the Board’s rejection of the Applicant’s contention that he will not have protection in Bangladesh or that he cannot relocate to other parts of the country as it was a bare assertion not supported by credible evidence. There was simply no evidence that the Applicant’s enemies would have the ability to track him down throughout Bangladesh or that Bangladesh police would allow the AL to act with impunity (§88-90).

10.  In such circumstances, I am not satisfied that the Board’s Decision is irrational even on the enhanced Wednesbury standard.

11.  The intended challenge against the Board’s Decision is not reasonably arguable. There are no realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.

Conclusion

12.  In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be 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