Alam Khorshed v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2443/2020

[2026] HKCFI 63

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2443 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 15 December 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against “the decision made on an unknown date but notice on 20 November 2018 [and] the decision dated 20 October 2020”.  The latter refers to the decision by the Torture Claims Appeal Board (the “TCAB”) dated 20 October 2020 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 9 November 2018 (which in turn seems to be the former decision referred to in the Form 86). These 2 decisions were also exhibited to the Applicant’s affirmation in support.  I therefore regard the present application to be a challenge to the TCAB Decision.

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 his political opponents in Awami League (which was the ruling party).  He also feared that he would be arrested by the police for vandalising vehicles and assaulting police officers.   In short, the Applicant is a member and supporter of the Bangladesh Nationalist Party (“BNP”, being the main opposition party).  In 2013 he participated in an anti-government protest and he vandalised shops and vehicles and also assaulted police officers.  The BNP President of his ward later warned him to hide as there would be court cases filed against him.  Subsequently he was shown a copy of an arrest warrant so he moved to different cities or towns.  In 2014 he was appointed to an official BNP post (although there were discrepancies in the title of that role according to the Applicant).  There were then attacks and assaults against the Applicant (and others) and death threats were made.  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 nor in his affirmation in support.

8.As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [5-36] and found that on the basis of the same, applying also the correct legal principles in respect of all four applicable grounds [43-47, 59-61, 64, 66-71] and properly considering Country of Origin information [38, 55-56, 76-78], the Applicant’s allegations were insufficient to make out any of the applicable grounds [48-58, 62-63, 65, 72-74].  In particular, the TCAB found the Applicant to be “dishonest and unreliable” and that “he is not a genuine claimant” [37-40], and accordingly there was no factual or evidential basis to support the Applicant’s claims in the first place [41].  There were conclusions that the TCAB was fully entitled to come to.

9.The TCAB also concluded that state protection and internal relocation were available on the evidence [56, 79]. 

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 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