RAHAMAN LUTFOR v. THE TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1670/2020

[2025] HKCFI 4955

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1670 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;

1.  Form 86 be amended, naming the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office as the Putative Respondent, and the Director of Immigration be named as the Putative Interested Party.

2.  The application for leave to apply for judicial review (including any associated application for extension of time) be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 17 August 2020 (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 22 June 2020 (the “2^nd TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 2 May 2017. The 2^nd TCAB Decision only concerned the Applicant’s claim under Article 2 of the Hong Kong Bill of Rights Ordinance (“BOR2”).

2.  There was an earlier decision from the TCAB dated 24 January 2017 (the “1^st TCAB Decision”) dismissing other grounds of the Applicant’s claim based on torture risk, persecution risk and Article 3 of the Hong Kong Bill of Rights Ordinance (“BOR3”), thereby affirming the DOI’s decision dated 11 February 2015. The procedural chronology is set out in [2-3] of the 2^nd TCAB Decision.

3.  I note that the Form 86 specifically refers to the 2^nd TCAB Decision by date as the decision under challenge. However, the Form 86 also refers to BOR3, torture risk and persecution risk (in addition to BOR2).

4.  To err on the side of caution, I am prepared to regard the Form 86 as an application for leave to apply for judicial review against both the 1^st TCAB Decision and the 2^nd TCAB Decision.

5.  I amend the Form 86 on my own motion to name the TCAB as the putative respondent and the DOI as the putative interested party.

6.  The Applicant requested for a hearing of this application and he attended the same.

Background

7.  The Applicant is a national of Bangladesh. He seeks non-refoulement protection on the basis that he would be harmed if he is to return to his home country. The Applicant claims to be a member of Islam Chhatra Shitber, a student wing of the Jamaet-e-Islam Party, which was in turn in a political alliance with the Bangladesh Nationalist Party. Their political rival, the Awami League (“AL”), won the general election in 2008. Before the general election, Hossain, a supporter of AL, asked the Applicant to change to support AL but the Applicant refused. Hossain subsequently organised attacks and assaults on the Applicant. The local police refused to entertain the case report. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the 1^st and 2^nd TCAB Decisions, which can be viewed through a hyperlink[1] [2]. I shall therefore not repeat them.

Discussion

8.  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.

9.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement cases 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. 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.

10.  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.

11.  In the Form 86, the Applicant complained that the TCAB “had unlawfully fettered his discretion” by refusing the Applicant’s claim, that the TCAB “acted in a procedurally unfair manner”, that the 2 decisions were “unreasonable or irrational in the public law sense”, and the TCAB “failed to meet the greater care and duty owed to a self-represented claimant”. His affirmation further referred to the fact that he was not legally represented, the hearing bundle and documents were provided to him last minute, he had limited English ability and that the TCAB relied on news sources that was not officially recognized or outdated. There is also an allegation that his claim under BOR2 went straight to the appeal avenue without going through the DOI (which is factually incorrect). The Applicant emphasized that he would still be in danger should be return.

12.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [1^st TCAB Decision 3-12, 2^nd TCAB Decision 4-12] and found that on the basis of the same, applying also the correct legal principles in respect of the four applicable grounds [1^st TCAB Decision 15-20, 44-45, 48-49, 2^nd TCAB Decision 15-18] and taking into account Country of Origin information [1^st TCAB Decision 33, 41], the Applicant’s allegations were insufficient to make out any of the applicable grounds [1^st TCAB Decision 21-32, 34-43, 46-47, 50-51, 2^nd TCAB Decision 19-20].

13.  Further, the TCAB also concluded that state protection was available on the basis of the available evidence [1^st TCAB Decision 33].

14.  It is self-evident that in its deliberation of the 2^nd TCAB Decision, the TCAB was entitled to consider and rely on the findings in the 1^st TCAB Decision.

15.  As to the grounds raised by the Applicant in the Form 86 and his affirmation, I see them as bare assertions without any basis. There was no procedural unfairness identified at all, and the Applicant was afforded an oral hearing leading to both the 1^st and 2^nd TCAB Decisions (so if there is any difficulty in understanding the documents based on language or insufficient time, these matters may be raised with the TCAB). The TCAB did not rely on “outdated” country of origin information; the burden is on the Applicant to demonstrate how his claim comes under one or more of the established grounds, and in any case he made no effort in identifying what “updates” there might be and how they might lead to a different conclusion. I find all of these grounds and complaints wholly unsubstantiated.

16.  At the hearing the Applicant also informed me that he became married in Hong Kong in 2023 with a Hong Kong resident. It is however not a matter that is relevant to the issues at hand.

17.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the 1^st or 2^nd TCAB Decisions, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the 2 decisions is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed. I further note that the application against the 1^st TCAB Decision was brought out of time, given that Order 53 rule 4(1) requires the leave application to be taken out within 3 months after the 1^st TCAB Decision was made. Since I have held that the application is without merit, I also refuse to grant an extension of time (there was also no explanation for the delay).

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