Aktaruzzaman Mohammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 783/2020

[2025] HKCFI 3301

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 783 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;

Order by Deputy High Court Judge (Non-Refoulement Claims) Lewis Law:

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

Observations for the Applicant:

1.By a Form 86 filed on 28 April 2020 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB”) made on 9 March 2020 (“the TCAB Decision”). A copy of the TCAB Decision can be viewed by the following hyperlink[1].

2.The TCAB Decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 15 May 2018.

3.The Applicant has failed to identify any alleged errors of law, irrationality or procedural unfairness on the part of the TCAB in reaching the TCAB Decision to make good his challenge, either in the Form 86 or the supporting affirmation.

4.In the oral hearing before me, the Applicant said he has nothing to add to the papers he has filed. He further said he has been in talk with the people in his country and intends to go back to his country in 5 or 6 months’ time, but he could not go back immediately because “some violence is still going on”. Notwithstanding the intention to go back in the foreseeable future, he did not wish to withdraw the present application for leave to apply for judicial review.

5.The Applicant is a Bangladesh national. He claimed to be the publicity secretary of Jubo Dal, the youth wing of a political party called Bangladesh Nationalist Party (“BNP”). His non-refoulement claim was based on an alleged risk of being harmed or killed by the affiliates of a political party called Awami League (“AL”) for (i) refusing to join AL; (ii) a business dispute he had with those affiliates; and (iii) a money lending dispute with his creditors.

6.The TCAB conducted a hearing to inquire into the facts of the Applicant’s claim. The TCAB stated the applicable legal principles in the TCAB Decision and set out the Applicant’s case comprehensively. The TCAB accepted that the Applicant had association with BNP, but was only at a low level given his failure to provide details of any political activities he had been involved. The TCAB also had difficulty with his assertion that he had been seriously harmed by the several AL figures named by him and that he was framed in a robbery case, by reason of his failure to provide a comprehensive and coherent account of the events. The Applicant was further said to be unable to give a reasonable explanation of the different periods of time during which he ran the alleged business (source of dispute with certain AL affiliates) and the different monetary amounts he claimed to have borrowed.

7.The TCAB was satisfied that there is a possibility that the Applicant did have a business dispute with several figures of AL and that he owed money to his creditors. However, the inconsistency the Applicant had in describing the various events related to his claim was significant, and this caused the TCAB to assess that the Applicant did not have any real risk of being subject to risks of torture, persecution and/or violation of his rights under the Hong Kong Bill of Rights.

8.I have reviewed the TCAB Decision vigorously. In my judgment, the TCAB Decision was based on sound factual findings and there was no apparent legal error in the decision. These findings were within the TCAB’s discretion and supported by evidence.

9.It has been reiterated time and again that the primary responsibility for the factual assessment of whether any future risk of ill-treatment exists if an applicant returns to his/her home country lies with the TCAB. In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen TCAB’s findings or make a determination on the case afresh. The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246). The leave application is accordingly dismissed.

Dated the 1^st day of August 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