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HCAL 644/2020
[2025] HKCFI 2934
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 644 of 2020
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Rab Abdul |
Applicant |
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And
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Torture Claims Appeal Board/Non-Refoulement Claims Petition Office
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Putative Respondent |
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And |
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Director of Immigration
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Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge (Non-refoulement Claims) YW Hew:
1. The Form 86 be amended on the Court’s own motion, naming only the “Torture Claims Appeal Board/Non-Refoulement Claims Petition Office” as the Putative Respondent and naming only the Director of Immigration as the Putative Interested Party; and
2. Leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
Introduction
1. The Applicant is a national of Bangladesh. By a Form 86 dated and filed on 15 April 2020 (“Form 86”), the Applicant sought leave to commence a judicial review of the decision of the Torture Claims Appeal Board (“TCAB”)/ Non-Refoulement Claims Petition Office (“NRCPO”) made on 2 April 2020 (“The TCAB Decision”).[1]
2. The Form 86 was accompanied by a supporting affirmation also dated and filed on 15 April 2020 (“the Affirmation”), which said the Applicant “would like to reject and aside the Decision made by Immigration Department they Disregard the Danger and threats I face in my country should I be deported”.
3. There was indeed a decision of the Director of Immigration (“Director”) dated 14 May 2019 (“Director’s Decision”) which had rejected his non-refoulement claims, and from which the Applicant petitioned/appealed to the TCAB/NRCPO. However, the Affirmation only exhibits the TCAB Decision, and the covering letter from the TCAB/NRCPO attaching the same.
4. I therefore did and do not see that the Applicant was clearly seeking leave to commence a judicial review of the Director’s Decision. However, if and insofar as he apparently seeks such leave, that application stands only to be rejected, and I do so. This is because such an application (if made) is misconceived given both the existence and implications of the two-tier system and the lack of exceptional circumstances justifying such an application (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310).
5. I have therefore amended the Form 86 of my own motion as set out above.
Background
6. The TCAB Decision sets out the Applicant’s background and case as to his claim for non-refoulement relief, and the immigration and procedural history leading up to the TCAB Decision (Paragraphs 1 to 5 and 25 to 35). I will not repeat them but, in essence and for present purposes:
a. The Applicant’s claim for non-refoulement relief in relation to the present proceedings is premised on Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5], and stems from the apparent risk that he, a member of Jamaat-e-Islami (“JI”) (a political party in Bangladesh) who also participated in organising meetings, rallies, and distributing leaflets, will be killed by members of the Awami League (“AL”) (another political party in Bangladesh) of which one Sabuz Sardar (“Sardar”) is a leader; and
b. As mentioned, his claims were rejected by the Director’s Decision, and in the TCAB Decision. The latter was reached after an oral hearing attended by the Applicant on 16 September 2019.
7. At the oral hearing, the Applicant gave evidence to the TCAB/NRCPO and answered questions posed by it (see e.g. Paragraph 40 and other paragraphs below).
8. No grounds for judicial review are set out in the Form 86 or the Affirmation.
9. The Applicant requested, and appeared before me, at an oral hearing of his leave application. He said that he wished to thank the Hong Kong government as it allowed him to stay here and saved his life. He then claimed that despite the change in government in Bangladesh, Sardar and the Police (who “still support a specific political party”) were still looking for him, threatening his family, and asking when he would return to Bangladesh. He asked to be allowed to stay here until January to June 2026 as he thought there would then be a fair election, after which he said he felt he would have no problem from Sardar anymore, and hence in order to save his life. He also sought to refer to the allegations made in his non-refoulement claim how his business was popular and there was an attempt to mix illegal products, namely drugs, with his and deliver them all over Bangladesh.
Legal Principles
10. An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86 (Ho Loy & Another v Director of Environmental Protection, (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142).
11. It is trite that judicial review is not a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the 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/NRCPO: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886.
12. In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA14, at §23).
Discussion
13. As the Applicant has not identified or set out any grounds of judicial review, there is hence no allegation of any procedural unfairness in relation to, and/or of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.
14. Nevertheless, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.
15. As I have mentioned, the TCAB Decision set out the Applicant’s procedural and immigration history in relation to his claim for non-refoulement relief (Paragraphs 1 to 5). The TCAB/NRCPO then correctly outlined the relevant procedural approach to be applied in the Applicant’s case, and the law in relation to each of the 4 relevant grounds for non-refoulement relief (Paragraphs 6 to 24), and followed that with a summary of the Applicant’s claims in the Non-Refoulement Claim Form (“NCF”) (Paragraphs 25 to 35).
16. The TCAB/NRCPO then identified the materials to which it was referred in the Hearing Bundle, including the NCF, and explained the specific approach taken in assessing the Applicant’s credibility and evidence, stating that it had carefully considered the Applicant’s claims including his evidence to the Department of Immigration, supporting documents, and oral evidence before the TCAB/NRCPO (Paragraphs 36 to 41).
17. As foreshadowed at Paragraph 40, this is followed by a detailed analysis – including references to relevant COI – of various issues with the Applicant’s evidence regarding his alleged involvement with JI (Paragraphs 41 to 52), and the evidence on past harm and threats from AL and Sardar (Paragraphs 53 to 64).
18. The TCAB/NRCPO then concluded, given its concerns but also considering the passage of time and memory lapses, that the Applicant had not provided a truthful or reliable account of why he left Bangladesh and why he feared being returned there. In particular, and in the circumstances, it did not accept that (Paragraphs 65 to 66):
a. the Applicant was ever a member of the JI (including of any committee);
b. the Applicant had attempted to disrupt Sardar’s apparent illegal drug-dealing/trafficking business;
c. Sardar or other AL supporters insisted or threatened the Applicant leave JI and join AL;
d. Sardar offered or threatened to use the Applicant’s business as a cover to transport illegal drugs throughout Bangladesh;
e. Sardar or other AL members/supporters burnt down the Applicant’s shop or threatened or assaulted the Applicant or anyone else his family in various parts of Bangladesh, including in the three incidents relied on; and
f. The injuries the Applicant had suffered had occurred for the reasons and in the circumstances claimed by the Applicant.
19. Given the evidence and findings, the TCAB/NRCPO then held, as it was entitled to, that there was no evidence to suggest that the Applicant would be exposed to BOR2 Risk, BOR3 Risk, or Persecution Risk if he were refouled to Bangladesh. As the TCAB/NRCPO found that the Applicant’s claims for non-refoulement were not made out, it confirmed the Director’s Decision (Paragraphs 67 to 72).
20. I do not, from my aforesaid examination and scrutiny, see that the Applicant has any reasonably arguable case of procedural unfairness (bearing in mind the need for a high standard of fairness), error of law, and/or irrationality/failure to meet the enhanced Wednesbury test in relation to the TCAB/NRCPO Decision. This is especially so as to the assessment, reasoning, and findings rejecting the Applicant’s evidence underlying his claim, and consequently the risk of harm, Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk, which are all matters primarily within the province of the TCAB/NRCPO. Moreover, the TCAB/NRCPO gave adequate reasons for the conclusions that it had reached. There is hence no basis to interfere with the TCAB/NRCPO’s findings of fact on matters which are primarily within its province.
21. The Applicant’s application for leave is not assisted by his vague and unsubstantiated allegations at the oral hearing. Furthermore, given the TCAB/NRCPO Decision and the aforesaid analysis, I do not see how they are relevant to the issues before me. I hence reject them.
22. Given the above, I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.
Conclusion
23. In the circumstances, I have ordered that the Form 86 be amended as described above, and that the application for leave to apply for judicial review be dismissed.
Dated the 15th day of July 2025
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(Edison Ho)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 15/07/2025
Rab Abdul
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 15/07/2025
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 15932/19/5/72/B2031
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 229/19 (formerly RBCZ 10089/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000644_2020_files/the_Board's_Decision.pdf
[2] The risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[3] The risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] The risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] The risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
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