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

HCAL 1895/2020

[2025] HKCFI 4570

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1895 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:

Introduction

1.  By a Form 86 filed on 22 September 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) dated 21 August 2020 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 30 October 2019 in refusing the Applicant’s non-refoulement protection claim.  He named the TCAB as the proposed respondent and the DOI as an interested party.

2.  The Applicant requested for a hearing and he attended the same.  However, he arrived at court late and at that point the interpreter of his chosen language of Bengali had already left.  I then asked if he could understand the English language, to which he confirmed that he could.  I therefore proceeded to ask him if he had anything to add and he then showed me pictures of hospital documents in his mobile phone, which showed appointments for his lower back and eye conditions.  These however were not relevant to the issues in this application.

Background

3.  The Applicant is a national of Bangladesh.  He seeks non-refoulement protection on the basis that he would be killed by members of a rival political party if he was returned.  His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

4.  In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  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, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

5.  In the Form 86, the Applicant raised a set of complaints against the TCAB Decision, alleging that it was procedurally unfair and unreasonable or irrational.  In his affirmation filed in support of this application, the Applicant alleged that he was not given an opportunity to put forth his submissions at an oral hearing or invited to make written submissions, and that the TCAB had relied on unofficial news and outdated cases.

6.  Turning to the TCAB Decision, there was in fact an oral hearing directed by it and all the materials and the Applicant’s claim, testimony and submissions were placed before the TCAB [27-41].  The TCAB also referred to then most updated COI and news from respectable channels [footnote 19-25, 27-33], and after thoroughly analysing the same came to the findings that the Applicant’s allegations were not made out [42-94].

7.  The TCAB bore in mind the correct principles on both the approach in assessment and the four applicable grounds under the USM [8-26], and came to the conclusion that none was made out [97-106].

8.  The TCAB further concluded that it concurred with the DOI’s decision that internal relocation was available, adding reference to COI issued by the UK Home Office in the same year in support [95-96].

9.  I therefore do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

10.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  I therefore dismiss the application.

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