RE MIAH KADER

CACV 396/2024, [2025] HKCA 485

On appeal from [2024] HKCFI 2224

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 396 OF 2024

(ON APPEAL FROM HCAL 1970/2019)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 12 September 2024 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 20 June 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 24 April 2019 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 4 January 2019, and he surrendered to the Immigration Department on the same day.  Thereafter, he lodged a non-refoulement claim by way of written representations dated 14 and 21 January 2019 and 20 February 2019.

3.  The applicant’s non-refoulement claim was based on a fear, should he be refouled, of being harmed or killed by the paternal and maternal uncles of his wife, Nasreen Akhter, as well as his wife’s family.  The details of the applicant’s claim have been summarised by the Judge at [3] to [4] of the Judge’s decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 24 April 2019 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the torture risk^[2], the BOR 2 risk^[3], the BOR 3 risk^[4], and the persecution risk^[5].

5.  The applicant appealed to the Board.  After considering the papers filed, the Board dismissed the appeal on 20 June 2019 (i.e. the Board’s Decision).  The Board’s Decision covered all grounds for non‑refoulement protection.  The Board found, after considering the evidence, that as a matter of fact the applicant’s enemies did not intend to kill him.  In any event, the Board considered that there were suitable options of internal relocation available to the applicant, which would minimise the risk of harm, if any. 

The Judge’s decision

6.  The applicant filed a Form 86 on 12 July 2019 seeking to judicially review the Board’s Decision.  In gist, the applicant’s grounds for review (insofar as against the Board) were (1) the Board acted unreasonably and unfairly by placing too much emphasis and reliance on Country of Origin Information but failed to take into account the applicant’s personal experience; (2) the Board unreasonably required the applicant to respond to questions which he was not in a position to answer; (3) the Board failed to take into account “the nexus of political parties and official corruption which exists in Bangladesh”.

7.  After summarizing the facts and background of the case and giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [11] to [17] of the CALL-1 Form:

“11. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13.(1) …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The 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 Board.’

14. The Board, for the reasons given above, found that the applicant’s claim did not meet any of the requirements under the applicable risks. There is no valid ground from the applicant to challenge the Board’s Decision.

15. There is no reason that the Court should interfere with the Board’s finding of the facts.

16. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

17.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

Grounds for appeal

8.  In the Notice of Appeal filed on 25 September 2024, the applicant stated that he would face hardship should he be refouled, and that the Board had wrongfully relied on “source of news which is not officially recognised”, cases which are “outdated” and information lacking in credible sources.

9.  In his written submissions lodged on 2 December 2024, the applicant referred inter alia to ST v Director of Immigration (sic)[6] [2014] 4  HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1  HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 for the trite propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim.

10.  The applicant appeared before this Court at the hearing of the appeal on 7 May 2025, and he had nothing to add to his case and submissions as had already been set out in the papers. 

Discussion

11.  The applicant has in the Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

12.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

13.  Turning to the written submissions and the well-established legal principles cited therein, there was no attempt by the applicant to elaborate on how they were misapplied or contravened in the processing of his non-refoulement claim.

14.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.  In any event, we have anxiously scrutinised the Board’s Decision and the Judge’s decision and are satisfied that they are both in order.

15.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.