Hossain Mohammod Alamgir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 487/2020

[2025] HKCFI 1995

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 487 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong:

1.  Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the only Putative Respondent; and (2) the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 6 April 2020 (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 March 2020 (the “Board’s Decision”).  The Applicant was referred to as Mohammod Alamgir Hossain in the Board’s Decision.

2.In the Form, the Applicant has named the Board and the Director of Immigration (the “Director”) as the proposed respondents, and the Applicant has not named any proposed interested party.  As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party, I make an order to amend the Form accordingly on the court’s own motion.

3.The Applicant had requested an oral hearing for the application.  The hearing took place on 22 April 2025 and the Applicant attended in person.  I shall deal with the Applicant’s submissions at the hearing hereinbelow.

Background

4.The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details 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

5.The applicable legal principles relating to application of this sort are well established.  The role of the Court 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 scrutinizing 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 §14)

6.In the Form, the Applicant did not state any grounds in support of the Leave Application.  In the supporting Affirmation, the Applicant simply alleged that the Board had disregarded the danger and threat he will face in his country if he returns there.  The Applicant has not provided any particulars in support of such assertion.        

7.I have considered the Board’s Decision in details.  I do not find any error of law, procedural unfairness or irrationality.  Neither has the Applicant been able to demonstrate any of the same.  There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision was comprehensive with adequate reasons provided.  In particular, the Board had properly assessed the evidence and was entitled to reject the Applicant’s case (§§27-40, 43-84 of the Board’s Decision).  The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. 

8.At the hearing on 22 April 2025, the Applicant submitted that the situation in Bangladesh has not changed.  He said that he will be attacked by people from the Bangladesh Nationalist Party (“BNP”) if he goes back to Bangladesh.  He said the BNP threatened him because they wanted him to join the party.  What the Applicant said at the hearing was contrary to what he told the Board.  Before the Board, the Applicant claimed that he joined the BNP in 2012 and he was threatened by the opposite party, the Awami League (§§30-31 of the Board’s Decision).  I raised such contradiction to the Applicant at the hearing and the Applicant simply said he realized that.  In any event, I note what the Applicant said at the hearing is not evidence given on oath. 

9.In short, I do not find any error committed by the Board in the Board’s Decision.  I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.  Accordingly, I refuse to grant leave for judicial review.

10.Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).  Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me.    

Conclusion

11.In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed.

Dated the 13^th day of May 2025

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

[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000487_2020_files/the_Board's_Decision.pdf