Ovy Das Alias Das Ovy Chandra v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 703/2020

[2025] HKCFI 3463

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 703 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:

1.  The Applicant’s Form 86 be amended to name the DI instead of the TCAB as the putative interested party; and

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

Observations for the Applicant:

1.By a Form 86 filed on 20 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 6 April 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 2 November 2018. In the Form 86, the Applicant correctly named the TCAB as the putative respondent but additionally named it, instead of the DI, as the putative interested party. I amended the Form 86 on my own motion to name the DI as the putative interested party to this application.

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.The Applicant is a Bangladesh national. He claimed to be a supporter of the Bangladesh Nationalist Party (“BNP”) and a Hindu. The Applicant’s non-refoulement claim was based on an alleged risk of being harmed or killed by (i) members of Awami League (“AL”), another Bangladeshi political party and (ii) Jamaat-e-Islami Bangladesh Party (“Jamaat”) or other Muslims because of his Hindu faith. The TCAB dismissed the Applicant’s petition/appeal after a hearing.

5.In the oral hearing before me, the Applicant sought to adduce a document, which was not available to the TCAB, to this Court to support the present leave application (“the Document”). The Document has 18 pages and is written in Bengali language. It was not translated when it was sought to be produced. This Court had tried to understand from the Applicant the gist of the Document with the assistance of a Bengali interpreter engaged by the Court Interpreter Services.

6.The Applicant initially said the Document reflects (i) a new case against him in March 2025 and (ii) the torture on people of Hindu religion in Bangladesh. He then said it was a court case (in Bangladesh) against him. When I enquired what was the nature of the case against him, he said it was a murder case. He also said it was received by him around 15 days ago.

7.This oral submission naturally led this Court to understand that the Applicant was allegedly accused of murder in a Bangladesh court case in March 2025 (even though he had left Bangladesh and come to Hong Kong for years).

8.Upon further clarification with the Applicant, he gave a different explanation. He said the Document did not allege him to have murdered someone, but reflected the killing of a family member of his (a cousin), such that it is evidence he and his family would be killed/harmed.

9.Then there was a further twist in his oral submission. He said he was “Defendant No. 1” in this document. The Court was completely at a loss whether the Document was adduced to show that the Applicant had been accused of murdering his cousin or he/his family members had been and/or would be harmed/killed because of religion.

10.In view of the length of the Document, I considered it more appropriate to direct the Applicant to file an English translation of the Document within 7 days from the date of the oral hearing. It was impossible, neither was it appropriate, to require the Court’s interpreter to translate the entire document on the spot. I reserve my decision of whether the Applicant is allowed to adduce the Document. No English translation of the document was filed within the period directed by this Court.

11.The Document was not previously placed before the TCAB because it was allegedly generated in March 2025, years after the TCAB Decision, and received about 15 days in advance of the oral hearing of this application. As pointed out by the Court of Appeal in Dr. Kwok Hay Kwong v The Medical Council of Hong Kong [2007] HKCU 962; [2007] 3 HKLRD 213 at 219, the conditions in Ladd v Marshall [1954] 1 WLR 1489 on the admission of fresh evidence on appeal are equally applicable to judicial review. The three criteria to justify reception of fresh evidence are that (a) the evidence could not have been obtained with reasonable diligence for use at the hearing; (b) the evidence was such that it would probably have an important influence on the result of the case; and (c) the evidence must be apparently credible, though it need not be incontrovertible.

12.In KV (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 2483, the English Court of Appeal confirmed the above criteria in asylum cases and commented that in public law cases these principles remain the starting point, and there is a discretion to depart from them in exceptional circumstances if the wider interests of justice so require.

13.The only copy of the Document available to me is written in Bengali language. In the oral hearing before me, the Applicant could not even explain to the Court what the Document he intended to adduce was about. The Applicant’s attempt to adduce the Document fails at both limbs (b) and (c) of the Ladd v Marshall criteria.

14.More importantly, the role of this Court is to review the legality of the TCAB Decision but not to adjudge the Applicant’s non-refoulement claim afresh or any “subsequent claim” of his. If the Applicant intends to argue that the fresh evidence demonstrates a significant change of circumstances in his home country since the determination of his non-refoulement claim (by the TCAB Decision) which shows that his risk of being harmed/killed to have been heightened, the Applicant should proceed by way of a different procedure, e.g. the procedure under section 37ZO(2)-(5) of the Immigration Ordinance (Cap. 115).

15.I have reviewed the TCAB Decision vigorously. In my judgment, the TCAB Decision was supported by factual findings and the TCAB had conducted an anxious scrutiny of the available evidence and information. The TCAB considered that the Applicant’s participation in BNP was at grass root level. While the Applicant was accepted to be a Hindu, the alleged attack by the Muslim people was considered unsubstantiated. The TCAB found that there was no genuine and substantial risk that the Applicant would be ill-treated, killed, harmed or persecuted by either AL people for political reasons or Jamaat people for religious reasons. I am unable to detect any error on the TCAB’s part in this regard.

16.It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the TCAB. In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the 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).

17.The leave application to apply for judicial review is thus dismissed.

Dated the 6^th 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