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

HCAL 1758/2020

[2025] HKCFI 4489

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1758 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 the TCAB Decision dated 12 August 2020 as the decision sought to be reviewed; 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 2 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 “4 August 2017”.  He named the TCAB as the proposed respondent and the DOI as an interested party.

2.  From the case record, there was a decision dated 12 August 2020 by TCAB (the “TCAB Decision”) affirming the decision by the Director of Immigration (the “DOI”) dated 17 May 2018, which refused the Applicant’s non-refoulement protection claim. 

3.  I take it that the Applicant is seeking judicial review of the TCAB Decision and amended the Form 86 accordingly on my own motion.

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

Background

5.  The Applicant is a national of Bangladesh.  He seeks non-refoulement protection on the basis that, if he was returned, he would be harmed by a man affiliated with an opposing political party and leader of many gangsters.  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 & Anor (2007) 10 HKCFAR 676).

7.  In the Form 86 the Applicant listed four grounds of complaint against the TCAB Decision: (a) the TCAB had unlawfully fettered its discretion, (b) procedural unfairness, (c) the decision was unreasonable or irrational in the public law sense, and (d) the TCAB failed the greater care and duty owed to a self-represented appellant.  However, in both the Form 86 and the supporting affirmation, the Applicant only particularised two specific complaints: (1) he was not given a fair opportunity to put forth his submissions in an oral hearing, nor was he invited to written submissions, and (2) the TCAB had relied on unofficial news and outdated information, thereby making groundless speculation as to safety in his home country.

8.  At the hearing the Applicant explained to me his current situation and child care duties that befell him as his wife is ill.  Unfortunately, these are not relevant to the issues at hand.

9.  Looking at the TCAB Decision, there was in fact an oral hearing held for the Applicant’s appeal and the Applicant in fact even elected to testify [5].  The Applicant presented his case at the hearing and the TCAB clearly took what he presented into consideration [6-10].  Further, the TCAB had before it and recited relevant contents of country report issued by the UK Home Office [34], which was also cited in the DOI decision (at [25(b)] and [26(a)] thereof) and was issued in January 2018, i.e. less than 2 years before the hearing before the TCAB.  The TCAB specifically reminded itself of the importance of having most up-to-date information as well [42]. As such, there is no substance in the Applicant’s complaints above.

10.  The above aside, the TCAB applied the correct principles in respect of each of the four applicable grounds under the USM [11-19, 47-51, 54-57, 61-66] and thoroughly analysed the Applicant’s case with reference to each ground [20-46, 52-53, 58-60, 67-71] before coming to the conclusion that none was made out.

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

Conclusion

12.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  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