Tomal Talukder v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1786/2020

[2025] HKCFI 4865

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1786 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 K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant is an illegal immigration and he had applied to the Director for non-refoulement protection. The Director refused his claim by way of 2 decisions on the applicable risks[1]:

(1)  Notice of Decision dated 3 December 2014 on Torture risk, BOR 3 risk and Persecution risk (“the Director’s 1^st Decision”); and

(2)  Notice of Further Decision dated 28 April 2017 on BOR 2 risk (“the Director’s 2^nd Decision”).

2.The applicant appealed the Director’s Decisions to the Torture Claims Appeal Board (“the Board”). The Board had dismissed his appeals by way of 2 Decisions:

(1)  Decision dated 30 March 2017 dismissing his appeal against the Director’s 1^st Decision (the Board’s 1^st Decision”); and

(2)  Decision dated 12 August 2020 dismissing his appeal against the Director’s 2^nd Decision (“the Board’s 2^nd Decision”).

3.The applicant did not apply for leave for judicial review of the Board’s 1^st Decision. He now applies for leave for judicial review of the Board’s 2^nd Decision only.

4.The applicant did not ask for a hearing.

5.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant’s case

6.The applicant is a national of Bangladesh. His reason in support of his claim on the applicable risks is that, if refouled, he will be harmed or killed by members of the Bangladesh National Party because he supported Awami League, the rival party.

7.Details of his claim are set out in the Board’s 1^st Decision and the Board’s 2^nd Decision. See hyperlink of the Board’s 1^st and 2^nd Decisions https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001786_2020_files/1st_Board's_Decision.pdf & https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001786_2020_files/2nd_Board's_Decision.pdf.

8.Since the applicant had not applied for leave for judicial review of the Board’s 1^st Decision, I shall not set out the details of the Board’s 1^st Decision, dismissing the applicant’s appeal. Suffice it to say, the Board considered that the applicant had not established that he will be at risk of the harms he claimed or any harm that entitle him to non-refoulement protection. [29]

The Board’s 2^nd Decision

9.The applicant appealed to the Board against the Director’s 2^nd Decision.  On 8 June 2020, the applicant appeared before the Board. He had given oral evidence and answered the Board’s questions.

10.The Board’s reasons for dismissing the applicant’s appeal against the Director’s 2^nd Decision are as below.

(1)  The applicant’s case does not involve the passing of death sentence by a court of law in Bangladesh or genocide. Therefore, clauses (ii) to (v) of BOR 2 do not apply to his case. [51]

(2)  He will not face a personal or real risk of BOR 2 ill-treatment upon his return to Bangladesh. Therefore, clause (i) also does not apply to his case. [52]

11.For those reasons above, the Board dismissed his appeal and affirmed the Director’s 2^nd Decision.

Application for leave to apply for judicial review of the Board’s Decision

12.The applicant has filed Form 86 dated 8 September 2020 for leave to apply for judicial review of the Board’s 2^nd Decision.

13.In his affirmation in support of his application, the applicant did not raise any specific reasons to challenge the Board’s 2^nd Decision.

DISCUSSION

14.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 2^nd Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.The Court will bear in mind that the Board’s 2^nd Decision should be examined with rigorous examination and anxious scrutiny.

16.The applicant has raised no valid ground to challenge the Board’s findings in its 2^nd Decision.

17.In any event, the applicant’s intended application has no chance of success as the Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, Hon Chu, JA (as she then was), Barma JA and Au JA ,7 January 2022, held:

“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

18.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s 2^nd Decision.

DISPOSITION

19.I refuse to grant leave to the applicant to apply for judicial review of the Board’s 2^nd Decision. Accordingly, I dismiss his application.

Dated the 30^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