AHMED TAJ UDDIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 723/2021

[2026] HKCFI 1240

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 723 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 20 May 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 13 May 2021 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 28 April 2017.

2.  In the Form 86, the Applicant sought leave for judicial review against both the DOI Decision and the TCAB Decision. But the DOI Decision is superseded by the TCAB Decision (Re Moshin Ali [2018] HKCA 549 at [45]).

3.  Thus, only the TCAB Decision is the relevant decision in respect of which relief is sought.

4.  The Applicant requested for a hearing of this application. When asked whether he had anything to add, he said that he had 16 or 17 cases against him pending in his home country and that he was a fugitive. He said that he would submit documents to support his assertion. However, upon further inquiry, the Applicant said that in fact all those cases happened before the hearings below. This court rejected the request for submitting further documents for the reasons stated below.

Background

5.  The Appellant is a national of Bangladesh. In gist, the Applicant alleges that he would be at risk of harm or death from the supporters and/or members and/or the government of the AL if refouled to Bangladesh due to his involvement with the BNP. 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

6.  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.

7.  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.

8.  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.

9.  The Applicant did not state any substantive 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 in the Form 86.  

10.  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 the applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [101-117]. The rejection of the Applicant’s case was inevitable, as the Applicant, curiously, did not know about the key events concerning the BNP, which stood in stark contrast to his having quite vivid memory on matters concerning his land ownership: see [88, 89, 91] and generally [44-67]. His evidence about him being a politically active member and official of the BNP was therefore not credible, and, naturally, his claims about him being persecuted because of his political opinion were also rightly rejected [90, 92].

11.  I have also carefully considered the Applicant’s oral submissions. His unsupported oral assertion in Court does not assist his case, and I reject his application to file documents in support of the same.

a.  His oral submissions were quite inconsistent with his case on paper: he had not previously (specifically) alleged that he had 16 or 17 cases against him pending in his home country which logically, as he had admitted, must have happened before the hearings below;

b.  Further, his (new) allegations would not affect the reasoning in the TCAB Decision set out above;

c.  In any event, if and insofar as the Applicant seeks to claim that there has in fact been a significant change of circumstances or new information relevant to his non‑refoulement claim, that may be relevant to the potential procedure in ss 37ZO and 37ZP Immigration Ordinance (Cap 115), but it is not relevant to the present application (Amandeep Kumar v Torture Claims Appeal Board [2019] HKCA 1369 at §13; Poinem v Torture Claims Appeal Board [2020] HKCA 911 at §15).

12.  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