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

HCAL 2376/2020

[2026] HKCFI 61

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2376 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:

(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 out of time be dismissed.

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 3 December 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 6 August 2020 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 29 June 2018.  It is noteworthy that the Applicant had previously lodged a torture claim which was dismissed in 2013 (and there was no appeal). 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.

Background

4.The Applicant is a national of Bangladesh.  He seeks non-refoulement protection on the basis that he would be harmed by one Faruq, his former business partner, who had a money and business dispute with the Applicant.  The Applicant and Faruq had opposing political affiliations (with Faruq supporting Awami League which is the ruling party).  The Applicant said that false criminal allegations were made by Faruq through other persons against the Applicant’s family members.  There were also instances where the Applicant saw Faruq mingling with supposedly notorious criminals in the area, and on one occasion they fired at the Applicant. 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 [4-40] 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) [82, 83, 86-87, 90] and properly considering Country of Origin information [73-78], the Applicant’s allegations were insufficient to make out any of the applicable grounds [41-45, 84-85, 88-89, 91-92].  In particular, the TCAB found the Applicant’s evidence to be “untruthful”, “speculative” and “wholly unreliable” [44, 46-72], and accordingly there was no factual or evidential basis to support the Applicant’s claims [72].  There were conclusions that the TCAB was fully entitled to come to.

10.The TCAB also concluded that state protection and internal relocation were available on the evidence [67, 79-80]. 

11.At the hearing the Applicant informed me that he has a daughter aged 15 who was born (and has since then been living) in Hong Kong.  He urged me to bear this in mind.  This however has nothing to do with the issues I need to deal with, namely the correctness (in the public law sense) of the TCAB Decision.

12.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.  I further note that 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.  Since I have held that the application is without merit, 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