Faruk Mohammed v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 1035/2020 [2025] HKCFI 3943 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1035 of 2020
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge (Non-Refoulement Claims) Lewis Law:
Observations for the Applicant: 1.By a Form 86 filed on 29 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 7 May 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 19 November 2018. The Applicant named both the TCAB and the DI as the putative respondent. I amended the Form 86 on my own motion to name only the TCAB as the putative respondent and the DI as the putative interested party. 3.In the Applicant’s application, he 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 supporter 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 senior leader and the affiliates of a political party called Awami League (“AL”), for having taken photographs of a lady associated with AL. 5.In the oral hearing before me, the Applicant confirmed that he had nothing else to add in addition to the papers filed in his application. 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 found that the Applicant was an incredible and unreliable witness, and he was evasive in giving his oral evidence. The TCAB also found that the account in relation to the refusal to give the photographs taken and the explanation why those photographs were detrimental were fabricated. The TCAB was not convinced that the alleged assault against the Applicant exist. The TCAB then further rejected the alleged claim that the people in AL falsely accused the Applicant of threat and assault against other people. 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 should he return to his home country. 7.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. 8.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). 9.The leave application to apply for judicial review is thus dismissed. Dated the 3rd day 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
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