Tanim Bhuiyan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1753/2020

[2025] HKCFI 4488

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1753 of 2020

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

Following;

Order by Deputy High Court Judge (Non-Refoulement Claims) Martin Wong:

1.  The Applicant’s Form 86 be amended to name only the TCAB as the putative respondent, only the DOI as the putative interested party and the TCAB Decision dated 2 July 2020 as the decision sought to be reviewed; and

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

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 1 September 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a “decision of the Director of Immigration” dated 2 July 2020. He named “TCAB” and the Director of Immigration (the “DOI”) both as the proposed respondents and interested parties.

2.From the case record, there was a decision by the Torture Claims Appeal Board (the “TCAB”) dated 2 July 2020 (the “TCAB Decision”), which affirmed the DOI’s refusal of the Applicant’s non-refoulement protection claim in a decision dated 4 February 2019.

3.I take it that the Applicant is seeking judicial review of the TCAB Decision, so I amended the Form 86 on my own motion accordingly, naming only the TCAB as the putative respondent and only the DOI as a putative interested party.

4.The TCAB Decision only concerned three of the four applicable grounds under the USM, as the Applicant’s claim based on torture risk had been made and rejected by the DOI in 2013.

5.The Applicant requested a hearing but he did not attend the scheduled hearing on 4 September 2025. From the court file I can see that the Notice of Hearing was sent to the Applicant at his updated correspondence address provided by the Immigration Department on 20 August 2025. I therefore see no reason why I should not proceed to deal with this application on paper despite his absence.

Background

6.The Applicant is a national of Bangladesh. He seeks non-refoulement protection on the basis that he would be killed by members of opposing political party if he was returned. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

7.In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. This court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

8.In his affirmation filed in support of this application, the Applicant complained that the TCAB Decision was unreasonable, in that it “failed to consider all the matters raised in my claim and/or give adequate reason”.

9.Looking at the TCAB Decision, the TCAB took into account all the documents placed before it [17-35] and noted that the Applicant did not wish to give oral evidence [8]. The complaint of failing to consider “all the matters raised” is clearly invalid.

10.After considering all evidence, the TCAB came to the finding that the Applicant’s allegations were not made out [37-40]. Further both state protection [41-43] and internal relocation [44-45] were available to the Applicant.

11.Then with the correct principles applicable to the three grounds before it in mind [9-16], the TCAB analysed each of these grounds and concluded that none was made out [46-48].

12.I therefore do not see any error of law, procedural unfairness or irrationality in the TCAB Decision despite rigorous examination and anxious scrutiny.

Conclusion

13.For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

Dated the 30^th 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

Form CALL-1