RAZU MIAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1836/2020

[2025] HKCFI 4490

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1836 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.   The Applicant’s Form 86 be amended to name only the DOI as a putative interested party; and

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 15 September 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) dated 29 July 2019 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 13 July 2018 in refusing the Applicant’s non-refoulement protection claim.  He named the TCAB as the proposed respondent, and both the TCAB and the DOI as interested parties.

2.  I amended the Form 86 on my own motion to name only the DOI as a putative interested party.

3.  The TCAB Decision only concerned three of the four applicable grounds under the USM, as the Applicant’s claim based on torture risk had been made and rejected by the DOI in 2013.

4.  The Applicant requested for a hearing and he attended the same.

5.  This application is plainly out of time and there is no application made for extension of time.  Nonetheless, I would still proceed to consider the merits of the application in determining whether extension of time should be granted to entertain this application.

Background

6.  The Applicant is a national of Bangladesh.  He seeks non-refoulement protection on the basis that his life would be in danger at the hands of persons with powerful political affiliation seeking to avenge the death of one of their peers, who was killed by the Applicant’s acquaintance.  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

7.  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 & Anor (2007) 10 HKCFAR 676).

8.  In his affirmation filed in support of this application, apart from alleging that the TCAB decision was based on irrelevant and inaccurate “current affairs”, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

9.  At the hearing, the Applicant only reiterated that the situation in his home country was not resolved and in fact got worse. Three of the four people involved in the death had been killed by the police. It was therefore “very difficult” for him to return.  However, he submitted no evidence for any of these allegations.

10.  Looking at the TCAB Decision, the TCAB took into consideration all the claims made by the Applicant, even those made in his prior application that was rejected in 2013 [8-9], and what he said at the hearing before the TCAB [10].  The TCAB applied the correct principles applicable to the three grounds before it [13-27], as well as internal relocation [28-29] and assessment approach [30-34].

11.  After thoroughly considered the Applicant’s case and evidence [35-74], the TCAB came to the conclusion that none of the grounds before it was made out [75-78].  In particular, the TCAB had considered COI issued by official governmental bodies in the US and Australia in 2018 and 2019 [footnote 21-25], dispelling any complaint of it relying on irrelevant or inaccurate “current affairs”.

12.  I therefore do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

13.  For the above reasons, I am not satisfied that this court would have intervened by way of judicial review even if time were to be extended.  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