HOSSAIN ABIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1907/2020

[2025] HKCFI 4571

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1907 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 23 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 10 September 2020 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 13 September 2018 in refusing the Applicant’s 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 he attended the same. 

Background

3.  The Applicant is a national of Bangladesh.  He seeks non-refoulement protection on the basis that he would be killed by members of a rival political party, which has also caused the police to press false charge against him, if he was returned.  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

4.  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).

5.  In the Form 86, the Applicant raised a set of complaints against the TCAB Decision, alleging that it was procedurally unfair and unreasonable or irrational.  In his affirmation filed in support of this application, the Applicant alleged that he was not given an opportunity to put forth his submissions at an oral hearing or invited to make written submissions, and that the TCAB had relied on unofficial news and outdated cases.

6.  At the hearing before me, when asked if he had anything to add he stated that he did not want to go back to his home country at least until the next general election, when his political party would come to power.  When asked when the general election would be held, he said that there was no time fixed yet but it would be likely to be in February or March 2026.

7.  Given the uncertainties as to which political party would actually win and come to power and even when such a general election would be held at all, I am unable to see how what he said should affect my determination of the issues relevant to this application.

8.  Turning to the TCAB Decision, the TCAB considered the Applicant’s case and evidence, including his testimonies before it during 3 oral hearings and relevant COI provided by

9.  Both the DOI and the Applicant, and all the materials placed before it [6-16, 29].  After thoroughly analysing the same, the TCAB came to the finding that the Applicant’s case was not made out [30-56].

10.  The TCAB bore in mind the correct principles on each of the four applicable grounds under the USM [17-28], proceeded to analyse each of them and concluded that none was made out [58-66].

11.  I therefore 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.

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