JASIM alias JASIAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 744/2020

[2025] HKCFI 3927

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 744 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.  Extension of time for the application for leave to apply for Judicial Review of the decision of the Torture Claims Appeal Board dated 10 December 2018 be refused; and

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

Observations for the Applicant:

1.  By a Form 86 filed on 23 April 2020 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB”) made on 10 December 2018 (“the TCAB Decision”).  A copy of the TCAB Decision can be viewed by the following hyperlink[1].

2.  The TCAB Decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 23 April 2018.  The TCAB and the DI are respectively the putative respondent and putative interested party to this application.

3.  The Applicant was late in filing this application.  Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A) requires an application for leave to apply for judicial review to be made promptly and in any event within three months from the date when grounds for the application first arose, i.e., when the TCAB Decision was made.  The last day of the 3-month period for the Applicant to file his Form 86 fell on 10 March 2019, he was therefore over a year late with this application.  In considering whether to extend the period within which the application shall be made, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration (Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration & Anor [2016] 2 HKC 393).

4.  The Applicant did not make any application for extension of time and provided no explanation for the delay in both the Form 86 and the supporting affirmation.  The delay in this case was substantial.  His application can be dismissed for this reason alone.  However, in view of the general principles regarding extension of time, I shall consider the merits of the Applicant’s leave application.

5.  In his supporting affirmation, the Applicant set out a few broad grounds of procedural fairness which were either unparticularized or incomprehensible.  For example, it was said the TCAB should conduct a rehearing and should not fetter its discretion, but there was no explanation how did the TCAB fail to observe these principles.  It was also vaguely suggested that the TCAB Decision was irrational and not paying regard to the proposition that “life and limb are in jeopardy” in this sort of cases etc.  Again there was no elaboration as to how.

6.  The Applicant is a Bangladeshi national.  He claimed to be an active member of a political party called Bangladesh Nationalist Party (“BNP”).  His non-refoulement claim was based on an alleged risk of being harmed or killed by the affiliates of a political party called Awami League (“AL”) for refusing to join the AL.

7.  The TCAB conducted a hearing to inquire into the facts of the Applicant’s claim.  The TCAB stated the applicable legal principles in the TCAB Decision and set out the Applicant’s case comprehensively.  The TCAB accepted that the Applicant had been a supporter of BNP, but said the Applicant was not registered as its member.  The TCAB also had difficulty with his assertion that figures of AL’s higher hierarchy would have persistently approached the Applicant to persuade him to switch his political loyalty.  The Applicant was further said to be unable to give a reasonable explanation of the different versions of events and attacks, which were found not credible. It was on such bases the TCAB found the Applicant not being subjected to any real risk of ill-treatment, torture, persecution or violation of fundamental rights should he return to his home country.  

8.  I have reviewed the TCAB Decision vigorously.  In my judgment, the TCAB Decision was based on sound factual findings and there was no apparent legal error in the decision.  These findings were within the TCAB’s discretion and supported by evidence.

9.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any future risk of ill-treatment exists if an applicant returns to his/her home country lies with the TCAB.  In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the TCAB’s findings or make a determination on the case afresh.  The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).

10.  By reason of the lack of merits and the substantial delay, I refused to grant an extension of time to the Applicant to apply for leave to commence judicial review.  The leave application is thus 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