HOWLADER IBRAHIM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1093/2020

[2025] HKCFI 3945

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1093 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 the Applicant being absent in open court;

1.  The Applicant’s Form 86 be amended to name the DI as the only putative interested party; and

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  By a Form 86 filed on 4 June 2020 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB”) made on 20 May 2020 (“the TCAB Decision”). A copy of the TCAB Decision can be viewed by the following hyperlink[1].

2.  The TCAB Decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 20 May 2019. The Form 86 has identified the TCAB as a putative respondent and both the TCAB and the DI as a putative interested party. I amended the Form 86 on my own motion to name the DI as the only putative interested party to this application.

3.  The Applicant was absent from the oral hearing of this leave application. On the authority of Re Abdus Salam [2019] HKCA 1091, I proceed to deal with the leave application based on the materials placed before me.

4.  The Applicant claimed to be a supporter of a political party called Bangladesh Nationalist Party (“BNP”) and a member of its youth league Jubo Dal. The basis of his non-refoulement claim was that he was in fear of being harmed or killed by the affiliates of a political party called Awami League (“AL”).

5.  After an oral hearing, the TCAB came to the finding that the Applicant he was not subject to any real risk of being harmed, killed, tortured or violated his fundamental human rights on a nation-wide basis; neither was he under any well-founded fear of being persecuted so that he had to stay outside Bangladesh. In coming to the finding, the TCAB considered the Applicant’s evidence and found him not credible.

6.  In his Form 86 and supporting affirmation in this leave application, the Applicant has set out a few grounds on which relief is sought. They are summarized as follows. First, the TCAB failed to meet “greater care and duty” owed to a self-represented claimant. Secondly, the TCAB failed to consider the risk of violation of the Applicant’s right to life under Article 2 of the Hong Kong Bill of Rights (“BOR2”). Thirdly, the TCAB had relied on country of origin information (“COI”) which was not officially recognised or simply hearsay, and some of which was fairly outdated.

7.  As to the first ground, the Applicant did not particularise the duty owed by the TCAB to him and how it was breached. I am not able to find any indication that the TCAB had failed to perform its duty in an appropriate manner.

8.  The TCAB did assess the Applicant’s right under BOR2. The second ground is obviously inapplicable.

9.  As to the third ground, the TCAB found the Applicant’s claim about political involvement incredible. Non-refoulement protection was denied primarily on that basis. In such situation, whether and how COI was assessed assumed less significance. In any event, the TCAB did consider COI from official overseas sources such as United Kingdom’s Home Office which was quite recent to the time of the TCAB Decision. The TCAB recognized political violence was a serious problem in Bangladesh particularly for active members of BNP (see paragraph 35 thereof), just the Applicant was not found to be one and so risked. There is no substance in the third ground.

10.  The Applicant also vaguely suggested the TCAB Decision to be irrational, the product of “unlawful fettering of discretion” and without regard of the “life and limb in jeopardy” principle etc. There was no elaboration as to how those grounds applied to the case and I find no substance in them. I do not intend to deal with each of those vague assertions.

11.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the TCAB. In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the TCAB’s findings or make a determination on the case afresh. The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).

12.  I have reviewed the TCAB Decision vigorously, but do not find the proposed judicial review reasonably arguable. The leave application is thus 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