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

HCAL 83/2022

[2026] HKCFI 1143

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 83 of 2022

  Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

1.   The Form 86 be amended by naming the Director of Immigration as the putative interested party.

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 25 January 2022 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the Decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 18 January 2022 (the “Board’s Decision”).

2.  The Applicant named the Board as the interested party in the Form.  I will amend the Form on my own motion to name the Director of Immigration (the “Director”) as the putative interested party instead.  

3.  In the Affirmation in support of the Leave Application (the “Affirmation”), the Applicant exhibited a copy of the Board’s Decision.  

4.  The Applicant requested an oral hearing for the Leave Application, which took place on 26 January 2026 (the “Hearing”).  At the Hearing, the Applicant said that he has nothing to add.

Background

5.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below[1] for reference.

Discussion

6.  In the Form, the Applicant raised various grounds in support of his Leave Application.  I will summarise them below:

a.   The Board’s Decision was unreasonable or irrational in the public law sense, or was a result of procedural errors or unfairness;

b.   The Board had unlawfully fettered its discretion in refusing the Applicant’s appeal;

c.   The Board had failed to meet the greater care and duty owed to the Applicant as a self-represented party;

d.   The Board had acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

e.   In dismissing the applicant’s appeal, there is no indication that the Board interacted with the facts of the Applicant’s claim, conducted any analysis of the supported documents or turned his mine to the ground under the consideration of the risk of violation of the Application’s right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383) (the “BOR 2 Risk”);

f.   The Board significantly relied on the source of news which is not officially recognised, or is simply hearsay;

g.   The Board had related on some cases which are outdated considering the dramatic changes.  The lack of credible source of information has resulted in the Board making groundless speculations.   

7.  The relevant legal principles are well established.  The Court’s role in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: see Nupur Mst v Director of Immigration [2018] HKCA 524 at para. 14.  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: see Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

8.  Having considered all the relevant materials before me, I do not consider the Applicant’s intended challenge against the Board’s Decision to be reasonably arguable with any realistic prospect of success.

9.  I have reviewed the Board’s Decision in detail.  The Board had fully considered the Applicant’s evidence and his grounds for challenging the Director’s decision in refusing his claim for non-refoulment protection.  On the facts, the Board found that as the Applicant agreed that he had not participated in political activities since 2016, and he had not been attacked by anyone since 2016, any risk which he may face due to his involvement with Chatra Shibir has ceased: see the Board’s Decision para. 38.  The Board also found that while there is COI about the less than pleasant conditions in Bangladesh and that the Bangladesh police is occasionally incompetent or corrupt in Bangladesh, the Applicant could still expect reasonable protection from the police, whom had been willing to take action against members and leaders of the luring party and its affiliations: see the Board’s Decision paras. 48, 53, 103-108.  In addition, the Board considered that there were internal relocation options available to the Applicant: see the Board’s Decision paras. 69-82.  On the above bases, the Board found that the Applicant would not face any Persecution Risk, BOR 2 Risk, BOR 3 Risk or Torture Risk[2] if he returns to Bangladesh and rejected the Applicant’s appeal: see the Board’s Decision paras. 54-111.  I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision.

10.  With respect to the Applicant’s complaints in paragraphs 6 (a) and (b) above, as I have explained in paragraph 9 above, the Board had not committed any error of law or procedure, or acted irrationally in making the Board’s Decision. 

11.  With respect to paragraphs 6 (c) and (d) above, as noted in paragraphs 35-37 of the Board’s Decision, the Board was fully aware that the Applicant was acting in person in the hearing before it.  The Board had given opportunity to the Applicant to present his case and respond to the decision of the Director.

12.  With respect to paragraphs 6 (e) above, the Board had considered all the relevant materials before reaching the conclusion that the Applicant does not face any BOR 2 Risk if he is refouled to Bangladesh.

13.  As to paragraphs 6 (f) and (g) above, the Applicant has failed to identify the alleged “source of news” or the “cases which are outdated”.  These grounds cannot assist the Applicant in the Leave Application.

14.  Leave application of this sort is meant to be a filtering process and this Court is not expected to give elaborated reasons for its decision: see Re Zunariyah [2018] HKCA 14 at para. 23.  I have considered all the relevant materials in reaching the present decision.

Conclusion

15.  For the reasons stated above, I will dismiss the Leave 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