RE A.N.M. RAKIBUL HASSAN

CACV 231/2026, [2026] HKCA 973

On Appeal From [2026] HKCFI 1260

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 231 OF 2026

(ON APPEAL FROM HCAL NO. 2277 OF 2025)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Chu VP (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”)  given on 3 March 2026[1] refusing his application for leave to apply for judicial review against the decision dated 15 September 2025 of the Torture Claims Appeal Board (“the Board”).   The Board had dismissed his appeal against the decision dated 28 May 2025 of the Director of Immigration (“the Director”)  which in turn had rejected the applicant’s non-refoulement claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2[5] risk grounds.

Background

2.  The applicant is a national of Bangladesh born in 1991.  He entered Hong Kong illegally and was arrested by the police on 3 March 2025.  On 2 April 2025, he lodged a non-refoulement claim.  His case was that his life was in danger in Bangladesh due to political enmity as he was a supporter of the political party, Awami League (“AL”)   and supporters of its rivalry parties, notably the Bangladesh Nationalist Party (“BNP”), wanted to harm or kill him.  Details of the applicant’s background, the basis of his claim, the arguments advanced before the Board and the Board’s reasons for rejecting his appeal have been set out in the Board’s decision[6].

3.  By a Form 86 filed on 10 October 2025, the applicant applied for leave to judicially review the Board’s decision.  He stated in his supporting affirmation that the Director had wrongly rejected his claim without any proper inquiry into his case or understanding his situation, and that he was a genuine non-refoulement claimant who faced danger, harassment and torture in his country. 

4.  The Judge listed the application for an oral hearing on 9 February 2026.  Shortly before the hearing, on 4 February 2026, the applicant submitted additional grounds for judicial review (“Additional Grounds”)  and two notarised documents issued by the Rangpur police station (“New Documents”)[7]. The Additional Grounds stated that the political scene in Bangladesh had undergone changes since June 2024 with the downfall of the then prime minister, and there had been massive chaos, violence and clashes between rivalry political parties.  The applicant further complained that there were procedural improprieties and legal errors in the Board’s decision, including failure to make inquiry into the country-of-origin conditions, and to consider the psychological strain and threats endured by him, the BOR 2 risk, his fear and risk of harm from his political enemies.  The New Documents showed that the applicant was wanted in his home country in connection with two riots that happened in September and December 2024.  

5.  By a Form CALL-1 dated 3 March 2026, the Judge refused the applicant’s application for the reasons that the applicant only raised bare assertions without advancing any valid grounds to challenge the Board’s decision and the intended judicial review had no realistic prospect of success.  

This appeal

6.  On 11 March 2026, the applicant filed his Notice of Appeal against the Judge’s decision.   

7.  The appeal was listed for hearing on 5 May 2026.  Despite directions given by the Court, the applicant did not lodge any written submissions to support his appeal.  The applicant is deemed to have waived his right to make submissions and the scheduled hearing was vacated pursuant to the directions of the Court.  We have therefore proceeded to determine the appeal on the basis of the available documents and materials.

Applicable legal principles

8.  In assessing the merits of the appeal, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

Our reasons for decision

9.  In his grounds of appeal, the applicant complained that the Judge did not properly scrutinize his case and asserted that he had a severe problem in his home country in that he would be killed by his enemies.  We note that the Judge had in the Form CALL-1 briefly mentioned the Additional Grounds and rejected them as bare assertions not supported by evidence (at [12] and [16]).  While the Judge did not elaborate on his reasoning, it is evident that the Board had rejected the applicant’s evidence and the factual basis of his claim as incredible, having regard to the glaring contradictions between the documents submitted and his oral evidence and also the implausibility of his evidence.  The Board found there was insufficient evidence to support the existence of a political dispute between the applicant and his enemies, or any past threat, harm or ill-treatment to the applicant or his family members.  The Board also had regard to the country-of-origin conditions and information, and found state protection and internal relocation alternatives were reasonably available to the applicant, which would negate or reduce any risk of harm he might face.  In view of the Board’s findings, there is no evidential basis to support the applicant’s claimed fear or his assertion of risk of harm.  

10.  Further, as repeatedly held by this court, assessment of evidence, country-of-origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board as the primary decision makers.  The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.   Although in his application in the Court of First Instance, the applicant made complaints of procedural impropriety and legal error against the Board’s decision, he did not provide any particulars to support them.  Not only were his complaints mere assertions, they did not in any way engage the reasons and analysis given by the Board.  In our view, the findings on credibility and assessment of risks of harm and availability of state protection and viability of internal relocation are open to the Board for the reasons it gave.  As to the New Documents submitted to the Judge, it was not shown how they relate to the applicant’s claim or how they would impact the outcome of the Board’s decision.  As the applicant is unable to point to any specific error or impropriety in the Board’s reasoning and procedure, his intended judicial review is bound to fail. 

11.  In the application below, the applicant had also attempted to challenge the Director’s decision.  However, as held in Re Moshin Ali [2018] HKCA 549, the decision of the Director is no longer susceptible to judicial review once an appeal to the Board has been pursued and the Director’s decision has been superseded by the Board’s decision.   It is therefore not open to the applicant to challenge the Director’s decision by way of judicial review.

12.  For the above reasons, the grounds of appeal are unarguable.   We see no proper basis to disturb the Judge’s decision.  Accordingly, we dismiss the applicant’s appeal.