Md Mohan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 130/2021

[2026] HKCFI 60

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 130 of 2021

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:

(1)  Form 86 be amended, naming only the Torture Claims Appeal Board / Non-refoulement Claims Petition Office as the Putative Respondent and only the Director of Immigration as the Putative Interested Party.

(2)  The application for leave to apply for judicial review (and any associated application for an extension of time if necessary) be dismissed.

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 4 February 2021 (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 November 2020 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 18 March 2020 (the TCAB Decision at [119] incorrectly recorded the DOI’s decision to be dated 18 May 2020). It is noteworthy that the Applicant had previously lodged a torture claim which was dismissed in 2013 (the appeal was also dismissed in 2013).  The TCAB Decision was therefore not concerned with torture risk.

2.I amend the Form 86 on my own motion to name only the TCAB as the putative respondent and only the DOI as the putative interested party.

3.The Applicant requested for a hearing of this application and he attended the same.  He further informed me that he would respect whatever decision that this Court may come to.

Background

4.The Applicant is a national of Bangladesh.  He seeks non-refoulement protection on the basis that he would be harmed by supporters in the Bangladesh Nationalist Party (“BNP”).  The Applicant was a supporter of the Jatiya party. In 1994 over a Jatiya party meeting, there was a large fight between BNP supporters and Jatiya supporters.  Later the leader of the Jatiya party was arrested and sent to prison.  Thereafter the Jatiya party lost power and was persecuted by BNP (who came to power).  The Applicant personally received death threats.  The Applicant further claimed that he was in grave danger from his paternal cousin and his followers who was a powerful figure in the Awami League (which subsequently became the ruling party).  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

5.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.

6.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. 

7.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.

8.The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86 nor in his affirmation in support, apart from asserting that the TCAB Decision was unreasonable as his claim was not carefully considered and that the TCAB did not give adequate reasons.

9.As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [4-10, 27-36, 37-66] and found that on the basis of the same, applying also the correct legal principles in respect of all the remaining applicable grounds (i.e. excluding torture risk) [11-26] and properly considering Country of Origin information [59-62, 65, 67, 81-87, 104-105], the Applicant’s allegations were insufficient to make out any of the applicable grounds [67-100, 110-117].  In particular, the TCAB found the Applicant’s evidence to be “unreliable, inconsistent and in certain important aspects, contradictory”, and accordingly there was no factual or evidential basis to support the Applicant’s claims [100].  There were conclusions that the TCAB was fully entitled to come to.

10.The TCAB also concluded that internal relocation was available on the evidence [101-109]. 

11.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.  I am satisfied that the TCAB carefully considered the Applicant’s claims and gave adequate and proper reasons for its decision.  The Applicant’s intended challenge to the TCAB Decision is therefore not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed. 

12.For the sake of completeness, it might be debatable whether the application was brought out of time.  Given that Order 53 rule 4(1) requires the leave application to be taken out within 3 months after the TCAB Decision was made, and coupled with the provisions in Order 3, time would arguably only expire on 4 February 2021 (instead of 3 February 2021).  I do not consider it necessary to resolve the technical point in the present situation, since I have already held that the application (even if brought within time) is without merit.  Insofar as it is necessary, in the event that the application is considered to be brought out of time, I also refuse to grant an extension of time (there was in any case no explanation for the delay).

Dated the 6^th day of January 2026

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