CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1336 of 2021
|
BETWEEN
|
| |
Malla Md Alamin |
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:
Order by Deputy High Court Judge (Non-Refoulement Claims) Lewis Law:
1. The Applicant’s Form 86 be amended to name the Director of Immigration as a putative interested party; and
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
1. By a Form 86 filed on 24 September 2021 (“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 12 July 2021 (“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 30 November 2020. The Form 86 has identified the TCAB as a putative respondent but not the DI as a putative interested party. I amended the Form 86 on my own motion to name the DI as a putative interested party to this application.
3. The Applicant is a Bangladeshi national. He claimed to be a member of a political party called the Bangladesh National Party (“BNP”). The basis of his non‑refoulement claim was that he was in fear of being harmed or killed by the members of another political party called Awami League (“AL”).
4. After an oral hearing, the TCAB came to the finding that the Applicant was not subject to any real risk of being harmed, killed, tortured or violated his fundamental human rights; neither was he under any well-founded fear of being persecuted so that he had to stay outside Bangladesh. In coming to the finding, the TCAB considered the Applicant’s evidence and found him not credible. One factor the TCAB took into account was the Applicant’s limited knowledge about Bangladesh politics.
5. In his Form 86 and supporting affirmation in this leave application, the Applicant has set out a few grounds on which relief is sought. They are summarized as follows. First, the TCAB failed to meet “greater care and duty” owed to a self‑represented claimant. Secondly, the TCAB failed to consider the risk of violation of the Applicant’s right to life under Article 2 of the Hong Kong Bill of Rights (“BOR2”). Thirdly, the TCAB had relied on country of origin information (“COI”) which was not officially recognised or simply hearsay, and some of which was fairly outdated.
6. As to the first ground, the Applicant did not particularise the duty owed by the TCAB to him and how it was breached. I am not able to find any indication that the TCAB had failed to perform its duty in an appropriate manner.
7. The TCAB did assess the Applicant’s right under BOR2. The second ground is obviously inapplicable.
8. As to the third ground, the TCAB found the Applicant’s claim about political involvement incredible. There was thus no factual basis upon which the TCAB could assess his claim; non-refoulement protection was denied on that basis. In such situation, whether and how COI was assessed assumed no significance. There is no substance in the third ground.
9. The Applicant also vaguely suggested the TCAB Decision to be irrational, the product of “unlawful fettering of discretion” and without regard of the “life and limb in jeopardy” principle etc. There was no elaboration as to how those grounds applied to the case and I find no substance in them. I do not intend to deal with each of those vague assertions.
10. It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists 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. I have reviewed the TCAB Decision vigorously, but do not find the proposed judicial review reasonably arguable. The leave application is thus dismissed.
Dated the 4th day of February 2026
| |
(Teresa Ng)
for Registrar, High Court
|
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 and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
|
|
Sent to the Applicant on 4 February 2026
Malla Md Alamin
Applicant’s ref. no.:
Nil. |
|
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 4 February 2026
Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 17474/20/12/33/B2193
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 793/20 (formerly RBCZ/10648/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1