Rahim Abdur v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1915/2020

[2025] HKCFI 4575

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1915 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) Martin Wong:

1.  The Applicant’s Form 86 should be amended to name the DOI as a putative interested party and the TCAB Decision dated 18 September 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 24 September 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) that refused his appeal on “11 December 2018”. He named the TCAB as the proposed respondent, and stated an address at the Immigration Tower in the interested party section.

2.From the case record, there was a decision by the TCAB dated 18 September 2020 (the “TCAB Decision”) which refused the Applicant’s appeal lodged on 11 December 2018 against a decision of the Director of Immigration (the “DOI”) dated 29 November 2018 in refusing the Applicant’s non-refoulement protection claim.

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

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

Background

5.The Applicant is a national of Bangladesh. He seeks non-refoulement protection on the basis that if he was returned, he would be killed by gang members whom he had antagonised when trying to protect a young girl from their harassment. 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

6.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).

7.In his affirmation filed in support of this application, apart from reiterating the danger if he was returned, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

8.Looking at the TCAB Decision, the TCAB considered the Applicant’s case and evidence, and all materials placed before it [7-19], including his testimony at the hearing before it [20-24, 25-29] and the relevant COI [42-47]. After thoroughly analysing the same came to the finding that the Applicant’s allegations were not made out [25-40] and internal relocation was available [41-47].

9.The TCAB then proceeded to analyse each of the four applicable grounds under the USM, applying in each instance the correct principles, and came to the conclusion that none was made out [48-69].

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

Conclusion

11.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 7^th day of November 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