Dulal Riaz Morshed v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1580/2020

[2025] HKCFI 4814

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1580 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) Vincent Lung:

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

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 29 July 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 3 July 2020 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 14 December 2018. It is noteworthy that the Applicant had previously lodged a torture claim which was dismissed in 2013 and there was no appeal.

2.The Applicant requested for a hearing of this application and he attended the same. When asked if he had anything to add he confirmed that he had not.

Background

3.The Applicant is a national of Bangladesh. He seeks non-refoulement protection on the basis that he would be harmed or killed by people in the Awami League (“AL”) because he had refused to leave his political party (the Bangladesh Nationalist Party) which was AL’s political rival. The Applicant contends that there were incidents when he was attacked by AL leaders and followers. He also says that his political enemy was very powerful and he did not expect to receive any help from the police. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them.

Discussion

4.The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

5.I remind myself that in a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement cases 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. A finding of fact is exclusively within the realm of the TCAB, and 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 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

6.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

7.The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86. He merely stated in his affirmation that he did not agree with the TCAB Decision and it is “not fair”.

8.As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [10-44] and found that on the basis of the same, applying also the correct legal principles in respect of the remaining three applicable grounds (i.e. excluding torture risk) [7, 45-54] and taking into account Country of Origin information [55-64], the Applicant’s allegations were insufficient to make out any of the applicable grounds [65-91]. In particular, the TCAB found that the key contentions of the Applicant are incredible [72-77].

9.Further, the TCAB also concluded that state protection and internal relocation were available on the basis of the available evidence [78-79, 92-95].

10.All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed.

Dated the 15^th day of October 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