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

HCAL 833/2020

[2025] HKCFI 3934

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 833 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 as 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 7 May 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 24 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 5 December 2018. 　The Applicant named “Skyline Tower, Kowloon Bay” (apparently one of DI’s office addresses) as the putative interested party.　 I amended the Form 86 on my own motion to name the DI as the putative interested party.

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 Bangladeshi national.  He claimed to be a member of Chatra Dal, the student 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 (i) the affiliates of a political party called Awami League (“AL”); and (ii) the authorities because AL had filed two false cases against him.

5.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 found that the Applicant gave inconsistent evidence in DI’s screening interview and the TCAB hearing in relation to his involvement in politics, particularly his connection with BNP and his duties in BNP, which he failed to reconcile.  The TCAB was not convinced that the Applicant had held any official position in BNP.  The TCAB further rejected that alleged false cases had been filed against him by the people in AL.  It was on such bases the TCAB found the Applicant not subject to any real risk of ill-treatment, torture, persecution or violation of fundamental rights if he returns to his home country.  

6.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.

7.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 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).

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

Dated the 2^ndday of September 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