BIPLOB BISWAS 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;

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 30 November 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 20 November 2020 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 25 April 2018.  It is noteworthy that the Applicant had previously lodged a torture claim which was dismissed in 2013 (appeal also dismissed in 2013).  The TCAB Decision was therefore not concerned with torture risk.

2.  The Applicant requested for a hearing of this application but he was absent at the hearing.  I shall deal with this application on paper. 

Background

3.  The Applicant is a national of Bangladesh.  He seeks non-refoulement protection on the basis that his life would be in danger if he is to go back.  In brief terms, the Applicant is a believer of Hinduism and he is in the religious minority.  He claims that he would be killed by his enemies in the Muslim majority (specifically 5 opponents who were affiliated with a terrorist group). There were previous attacks and assaults against the Applicant.  The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them.

Discussion

4.  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.

5.  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. 

6.  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.

7.  The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.  In his affirmation in support and the accompanying exhibit, he merely repeated his factual case and explained why he considered that the danger was still continuing, and he complained that the TCAB “did not screen [his] claim properly”.

8.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [2-12, 34-98] and found that on the basis of the same, applying also the correct legal principles in respect of all the remaining applicable grounds (i.e. excluding torture risk) [17-33] and considering Country of Origin information [11, 144], the Applicant’s allegations were insufficient to make out any of the applicable grounds [102-134, 135-147, 148-150].  Furthermore, the TCAB had “fundamental concerns” about the Applicant’s credibility [141, 145], and accordingly there was no factual or evidential basis for the Applicant’s claims in the first place [143, 146]. These were conclusions and findings that the TCAB was fully entitled to reach.

9.  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.  The Applicant’s intended challenge to the 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