AKHLAS SAHANA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 708/2020

[2025] HKCFI 3930

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 708 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.

1.  By a Form 86 filed on 20 April 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 14 April 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 29 November 2018.  

3.  The Applicant has failed to identify any alleged errors of law, irrationality or procedural unfairness on the part of the TCAB in reaching the TCAB Decision to make good her challenge, either in the Form 86 or the supporting affirmation. 

4.  The Applicant is a national of Bangladesh.  The Applicant claimed that she and her late husband joined a political party called Awami League (“AL”) but her late husband left AL after three years and joined another political party called Jamaat.  She further stated that AL demanded payment for quitting AL and subsequently killed her late husband and son.  The basis of the Applicant’s non-refoulement claim was that she was in fear of being harmed or killed by (i) the affiliates of AL and (ii) her in-law family members for revenge of the killing incident. 

5.  The TCAB conducted a hearing to give the Applicant a chance to make representations.  After an intense factual inquiry into the Applicant’s case, the TCAB accepted that her account of events is credible.  However, the TCAB came to the view that the involvement of her late husband in AL was only at grass-root level; the threats alleged by the Applicant was not accepted to have existed.  Even if the threats exist/existed, they were found to be locally confined.  The TCAB noted that the Applicant was able to travel in and out through immigration channels in Bangladesh safely over the years.  The TCAB also found that the Applicant could safely live in other places in Bangladesh.  It was on those bases that the TCAB found the Applicant not being subject to any real risk of ill-treatment, torture, persecution or violation of fundamental rights  should she return to her home country.  I am unable to detect any public law error on the TCAB’s part.  

6.  I have reviewed the TCAB Decision vigorously.  In my judgment, the TCAB Decision was supported by factual findings and the TCAB had conducted an anxious scrutiny of the available evidence and information. 

7.  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).

8.  The leave application to apply for judicial review 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