BIPLOB ABDUL HALIM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1959/2020

[2025] HKCFI 4578

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1959 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;

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 29 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 22 September 2020 (the “TCAB Decision”), which refused to allow the Applicant’s late filing of an appeal against a decision by the Director of Immigration (the “DOI”) dated 6 April 2020 in refusing the Applicant’s non-refoulement protection claim. He named the TCAB as the proposed respondent, and both the TCAB and the DOI as interested parties.

2.  The Applicant requested for a hearing and he attended the same. When asked if he had anything to add he confirmed that he had not.

Background

3.  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 people affiliated with a rival political group, whom he had refused to give money to and who had caused a false murder charge against him. 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

4.  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).

5.  In his affirmation filed in support of this application, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

6.  Looking at the TCAB Decision, as required under the then s.37ZT of the Immigration Ordinance (Cao. 115), the TCAB properly took into consideration the Applicant’s explanation for the lateness [4-7], the merits of the intended appeal on all four applicable grounds under the USM, applying the correct principles in respect of each [10-27], and came to the conclusion that the Applicant’s late filing of the appeal should not be allowed.

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

Conclusion

8.  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