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HCAL 122/2020
[2025] HKCFI 2503
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 122 of 2020
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Uddin Mohammad Ahasan |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
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) Martin Wong:
1. The Form 86 is amended on the Court’s own motion; and
2. Leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
Introduction
1. By a Form 86 filed on 13 January 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of “decision by (Ms Alexandra Lo) 3 January 2020”. She named the Torture Claims Appeal Board (the “TCAB”) and the Director of Immigration (the “DOI”) both as proposed respondents and inserted an address at the Immigration Tower in Wan Chai in the interested party section.
2. From the papers filed for this application, there was a decision by the TCAB dated 3 January 2020 (the “TCAB Decision”) which affirmed the decision by the DOI dated 30 July 2018 refusing the Applicant’s non-refoulement protection claim. The hearing before the TCAB was held at the Immigration Tower address above. I take it that the Applicant is seeking judicial review of the TCAB Decision.
3. I accordingly amended the Form 86 on my own motion naming the TCAB as the putative respondent and the DOI as a 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 will be ill-treated or killed by people of opposing political affiliation if he is returned. 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
6. 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).
7. In his affirmation filed in support of the Form 86, the Applicant only reiterated the threat he faces and did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.
8. Looking at the TCAB Decision, all the available evidence was before the TCAB [8-24], as well as COI [39-40], and after careful analysis [41-55] the TCAB came to the conclusion that the Applicant’s allegations were not made out [56-65].
9. The TCAB then proceeded to analyse each of the four applicable grounds under the USM, identifying in each instance the correct legal principles [25-38], and came to the conclusion that none was made out [66]. Further, the TCAB concluded that internal relocation was available to the Applicant in any event [67-70].
10. All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.
Conclusion
11. For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.
Dated the 17th day of June 2025.
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( Allen LEE ) |
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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 the Applicant’s 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 17/6/2025
Uddin Mohammad Ahasan
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 17/6/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 12901/18/8/171/B1455
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1770/18 (Formerly RBCZ/14529/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000122_2020_files/the_Board's_Decision.pdf
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