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

HCAL 1689/2020

[2025] HKCFI 4951

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1689 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;

1.  Form 86 be amended, naming only the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office as the Putative Respondent and only the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 20 August 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 6 August 2020 (the “2^nd TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 24 May 2017.

2.  I specifically note that this application is only made against the 2^nd TCAB Decision which concerns the Applicant’s claim under Article 2 of the Hong Kong Bill of Rights Ordinance (“BOR2”), and no more. This is made clear in the Form 86 which specifically refers to the 2^nd TCAB Decision by date as the subject of challenge. There was an earlier decision from the TCAB dated 29 March 2017 dismissing other grounds of the Applicant’s non-refoulement claim (the “1^st TCAB Decision”) which does not form part of the present application. The procedural chronology is set out in [2-3] of the 2^nd TCAB Decision.

3.  I amend the Form 86 on my own motion to name only the TCAB as the putative respondent and only the DOI as the putative interested party.

4.  The Applicant requested for a hearing of this application and he attended the same. When asked if he had anything to add he confirmed that he had not.

Background

5.  The Applicant is a national of Bangladesh. He seeks non-refoulement protection on the basis that he would be harmed or killed is he is to return to his home country. The Applicant contends that he was a member of the youth wing of the Awami League. Its political rival Bangladesh Nationalist Party (“BNP”) won the election in 2001, and afterwards various attacks and assaults were carried out against the Applicant by BNP supporters. The Applicant’s personal background and the relevant facts have been fully set out in the 2^nd TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them.

Discussion

6.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

7.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement cases 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. A finding of fact is exclusively within the realm of the TCAB, and 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 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

8.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

9.  The only ground set out in the Form 86 is that the 2^nd TCAB Decision was “unreasonable” as the claim was not carefully considered. This was repeated in his affirmation which also complained that the TCAB failed to consider all the matters and/or to give adequate reasons.

10.  As can be seen from the 2^nd TCAB Decision, the TCAB noted at [3, 21] that there were no new materials other than those considered in the 1^st TCAB Decision. The TCAB then took into account the Applicant’s case [4-14], applied the correct legal principles in respect of BOR2 claims [17-20], and held that the Applicant’s allegations were insufficient to make out a BOR2 claim [21-23]. In particular, as the TCAB noted, the Applicant himself confirmed that he was not a criminal wanted by the police in Bangladesh and he was not going to face serious charges or punishment there [21], and hence a BOR 2 claim was not made out.

11.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the 2^nd TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the 2^nd TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is 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