HOSSAIN MOHAMMAD ARMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 93/2023

[2026] HKCFI 3125

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 93 of 2023

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 20 January 2023 (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 29 November 2022 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 2 March 2021 in refusing the Applicant’s non-refoulement protection claim.  He named the TCAB as the proposed respondent and the DOI as an interested party.

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 his wife’s family members who are affiliated with an opposing political party.  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 raised a number matters as grounds for judicial review.

6.  However, all of the complaints are made against the DOI and the DOI’s decision, which is outside the ambit of this application for judicial review of the TCAB Decision.

7.  As such, these matters go nowhere to establish or support any grounds for judicial review in the present application.

8.  Looking at the TCAB Decision, the TCAB took into consideration of the Applicant’s case and evidence [6-15] and bore in mind the correct principles in respect of each of the four applicable grounds under the USM and assessment approach [18-27].

9.  After thorough analysis and assessment, the TCAB found and concluded that none of the Applicant’s allegations was made out [28-36]. 

10.  The TCAB further found and concluded that none of grounds under the USM was made out either [37-40].

11.  I 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