Hossain Md Kabir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 75/2023 [2026] HKCFI 3124 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 75 of 2023
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) Martin Wong:
Observations for the Applicant: Introduction 1.By a Form 86 filed on 18 January 2023 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision dated 9 January 2023 and stated both “Decision of the Director of Immigration” and “TCAB Decision”. He named TCAB, Non Refoulement Claims Petition Office, the Director of Immigration (the “DOI”) as proposed respondents and also interested parties. 2.From the case record, there was a decision by the Torture Claims Appeal Board (the “TCAB”) dated 9 January 2023 (the “TCAB Decision”) which affirmed a decision by the DOI dated 14 July 2021 in refusing the Applicant’s non-refoulement protection claim. 3.I amended the Form 86 on my own motion to name only the TCAB Decision as the decision in respect of which relief is sought, only the TCAB as the putative respondent, and only the DOI as a putative interested party. 4.The Applicant requested for a hearing and 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 harmed or killed by people of opposing political affiliation. 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, the Applicant simply asserted that the TCAB Decision was unreasonable in that the TCAB failed to consider all the matters raised or give adequate reason for the decision. There are no particulars given at all. 8.Looking at the TCAB Decision, the TCAB took into consideration the Applicant’s case and evidence, including his testimony at the hearing before it and relevant Country of Origin Information [5-26]. 9.With in mind the correct principle in approaching assessment and the correct legal principles in respect of each of the four applicable grounds under the USM, and after thorough analysis and assessment, the TCAB found and concluded that none of the grounds was made out [27-61]. 10.Further, the TCAB found and concluded that internal relocation would in any event be available to the Applicant [62-70]. 11.I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. Conclusion 12.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 10th day of June 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
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