PATHAN MD MOSARUF v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1919/2020

[2025] HKCFI 5249

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1919 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 24 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 9 September 2020 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 23 December 2019 in refusing his 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 attended the scheduled hearing on 10 September 2020.  He asked for time to submit further materials and I gave him until 17 September 2020 to do so. 

3.  On 17 September 2020 he did submit various materials, including an arrest warrant against him dated March 2019 and some video news with screen captures showing a murder case being reported.

Background

4.  The Applicant is a national of Bangladesh.  He seeks non-refoulement protection on the basis that if he was returned, he would be arrested for false charges and ill-treated by people of a rival political organisation.  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

5.  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).

6.  In the Form 86 the Applicant listed four grounds of complaint against the TCAB Decision: (a) the TCAB had unlawfully fettered its discretion, (b) procedural unfairness, (c) the decision was unreasonable or irrational in the public law sense, and (d) the TCAB failed the greater care and duty owed to a self-represented appellant.  However, in both the Form 86 and the supporting affirmation, the Applicant only particularised two specific complaints: (1) he was not given a fair opportunity to put forth his submissions in an oral hearing, nor was he invited to written submissions, and (2) the TCAB had relied on unofficial news and outdated information, thereby making groundless speculation as to safety in his home country.

7.  Looking at the TCAB Decision, there was in fact an oral hearing held for the Applicant’s appeal and the Applicant in fact made oral submissions [16].  The TCAB also took all the materials before it into consideration [12-19].  The TCAB also considered the same COI materials available to the DOI [47], which as shown in the DOI’s decision, included reported issued by the US State Department, the UK Home Office and the Anti-Corruption Commission Bangladesh, all in 2018.  There is therefore no substance in the Applicant’s complaints above.

8.  The above aside, the TCAB applied the correct approach in its assessment of the materials before it and after thorough analysis came to the finding that the Applicant’s allegations were not made out [20-66].  It then proceeded to analyse each of the four applicable grounds under the USM, applying in each instance the correct principles, before coming to the conclusion that none was made out [67-90].  The TCAB further concluded that internal relocation would be available to the Applicant [91-97].

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

10.  As to the materials submitted on 17 September 2025, with the help from court interpreter, I gather that the arrest warrant of March 2019 was in respect of a murder charge and thus apparently related to the Applicant’s case before the TCAB that false murder charge was laid against him [14(viii)], for which he submitted some documents to the TCAB as well [19].  It is therefore not something new or not considered by the TCAB.  It therefore goes nowhere to support the Applicant’s challenge against the TCAB’s decision.

11.  For the video news and screen captures, I do not see how the murder reported is in any way connected to the Applicant’s case. They add nothing to the Applicant’s challenge against the TCAB Decision.

Conclusion

12.  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