MD RABI ULLAH alias MDRABIULLAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

1.  Form 86 be amended on the court’s own motion that the Torture Claims Appeal Board / Non-refoulement Claims Petition Office be named as the Putative Respondent; and

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 8 April 2021 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 16 March 2021 (the “Board’s Decision”).

2.  To ensure that the Board is properly named, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.  An oral hearing was requested by the Applicant.  It took place before me on 23 December 2025 (the “Hearing”) and the Applicant attended in person.

Background

4.  The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same herein.  The hyperlink to the Board’s Decision is included below[1] for reference.  The essence of the Applicant’s claim is that he would be harmed or killed by associates or members of two political parties, namely, the Awami League and the Bangladesh Nationalist Party (together, the “Adversaries”) if he were to return to Bangladesh.

Discussion

5.  This type of leave application is intended to be a filtering process and elaborate reasons are not necessary, see Re Zunariyah [2018] HKCA 14, at §23.  Hence I shall set out the brief reasons for my decision below.

6.  It is well-established that the determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

7.  It is trite law that, an applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J (as he was then) at §142.  In the present case, the Applicant has completely failed to advance any ground of review in his Form 86 or the affirmation made in support.

8.  At the Hearing, the Applicant said he had nothing further to add to the Leave Application.  

9.  Notwithstanding the Applicant’s failings as identified above, I have conducted a review of the Board’s Decision.  I do not find any error of law, procedural unfairness or irrationality.  There is nothing to indicate that the Board had failed to take into account any relevant matters or that it had taken into account irrelevant matters. 

10.  The Board’s Decision was comprehensive with adequate reasons provided. In particular, I see no basis to interfere with the Board’s finding that there was no evidence of any real risk of serious harm, given that, on the Applicant’s own evidence, he had no political affiliation.  The Applicant claimed that he was persecuted because he was a witness to a shooting in 2005 by happenstance.  Other than verbal threats, there was no actual violence perpetrated against him for over 4 years up to the Applicant’s arrival in Hong Kong (§§18-36, 56).

11.  The Applicant’s contention that he cannot relocate to other parts of his home country is merely a bare assertion. As rightly found by the Board, the Applicant, as an able‑bodied adult with reasonable education and business skills, should have no difficulty relocating to places such as Dhaka, the capital of Bangladesh.  There is no evidence that he would face any persecution or harm after relocation.  Given the lapse of 15 years since the shooting by the time the Board’s Decision was made, it was highly unlikely that his Adversaries would have any interest to pursue him (§§72-75).

12.  Accordingly, the Applicant’s intended challenge of the Board’s Decision is not reasonably arguable and fails to meet the requisite threshold for granting leave.  Accordingly, leave is refused.

Conclusion

13.  In the premises, I make an order that the Form 86 be amended as described above and dismiss the Leave 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