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HCAL 75/2023
[2026] HKCFI 3124
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 75 of 2023
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BETWEEN
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Hossain Md Kabir |
Applicant |
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and |
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Torture Claims Appeal Board / |
Putative |
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Non-Refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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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) Martin Wong:
1. The Applicant’s Form 86 be amended to name only the TCAB Decision as the decision in respect of which relief is sought, only the TCAB as the putative respondent, and only the DOI as a putative interested party; and
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By a Form 86 filed on 18 January 2023 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision dated 9 January 2023 and stated both “Decision of the Director of Immigration” and “TCAB Decision”. He named TCAB, Non Refoulement Claims Petition Office, the Director of Immigration (the “DOI”) as proposed respondents and also interested parties.
2. From the case record, there was a decision by the Torture Claims Appeal Board (the “TCAB”) dated 9 January 2023 (the “TCAB Decision”) which affirmed a decision by the DOI dated 14 July 2021 in refusing the Applicant’s non-refoulement protection claim.
3. I amended the Form 86 on my own motion to name only the TCAB Decision as the decision in respect of which relief is sought, only the TCAB as the putative respondent, and only the DOI as a putative interested party.
4. The Applicant requested for a hearing and attended the same. When asked if he had anything to add, he confirmed that he had not.
Background
5. The Applicant is a national of Bangladesh. He seeks non-refoulement protection on the basis that if he was returned, he would be harmed or killed by people of opposing political affiliation. 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
6. 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).
7. In his affirmation filed in support of this application, the Applicant simply asserted that the TCAB Decision was unreasonable in that the TCAB failed to consider all the matters raised or give adequate reason for the decision. There are no particulars given at all.
8. Looking at the TCAB Decision, the TCAB took into consideration the Applicant’s case and evidence, including his testimony at the hearing before it and relevant Country of Origin Information [5-26].
9. With in mind the correct principle in approaching assessment and the correct legal principles in respect of each of the four applicable grounds under the USM, and after thorough analysis and assessment, the TCAB found and concluded that none of the grounds was made out [27-61].
10. Further, the TCAB found and concluded that internal relocation would in any event be available to the Applicant [62-70].
11. I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.
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.
Dated the 10th day of June 2026
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(Cheung Ho Yat, Annson)
for Registrar, High Court
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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:
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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)).
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Sent to the Applicant on 10 June 2026
Hossain Md Kabir
Applicant’s ref. no.:
Nil. |
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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 10 June 2026
Torture Claims Appeal Board / Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 18358
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 527/21 (formerly RBCZ 10884/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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