HASAN MEHEDI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3857/2019

[2025] HKCFI 1624

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3857 of 2019

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 24 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of the decision by Torture Claims Appeal Board (the “TCAB”) dated 23 December 2019 affirming the decision of the Director of Immigration (the “DOI”) dated 16 September 2019. He named the TCAB as the proposed respondent and the DOI was an interested party.

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

Background

3.  The Applicant is a national of Bangladesh. He seeks non-refoulement protection on the basis that he will be harmed or killed by his family and indeed the whole society due to his change in religion. 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 & Anr (2007) 10 HKCFAR 676).

5.  In his affirmation filed in support of the Form 86, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision. In his Form 86, the Applicant did attach a set of grounds on which relief is sought, however the complaints therein were but generic criticisms such as weight to be attached to evidence or mere assertions that different conclusions should have been reached.

6.  Looking at the TCAB Decision, all the available evidence was before the TCAB [6-11]. The TCAB bore in mind the correct approach in assessing the evidence [12-39] and carefully considered the same before coming to the conclusion that the Applicant’s allegations were not made out [40-47].

7.  The TCAB then proceeded to analyse each of the four applicable grounds under the USM, identifying the correct applicable principles in each instance, and concluded that none was made out [48-90]. The TCAB further concluded that internal relocation was available to the Applicant [91-96].

8.  At the hearing, the Applicant informed me that he has since married to a Hong Kong citizen and has applied for a dependent visa. However, this matter has no relevance to the considerations at hand.

9.  All in all, I have not detected any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

10.  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