RE ALAM MD DIDARUL

CACV 644 /2025, [2025] HKCA 1061

On appeal from [2025] HKCFI 3419

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 644 OF 2025

(ON APPEAL FROM HCAL NO. 2757 OF 2019)

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JUDGMENT

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 14 August 2025^[1] refusing his application for leave to apply for judicial review against the decision dated 12 September 2019 of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decision dated 16 July 2019 of the Director of Immigration (“the Director”) which rejected the applicant’s non-refoulement claim.

2.  By a fax dated 9 September 2025, the Immigration Department forwarded a letter dated 26 August 2025 from the applicant to the Registrar of High Court, in which he indicated that he would like to withdraw his judicial review application and requested to withdraw all his cases in Hong Kong as he wanted to return to his home country as soon as possible.  On 11 September 2025, the Registrar of Civil Appeals directed that if the applicant was requesting for a dismissal of this appeal he should lodge with the Court a duly completed Request for Dismissal of Appeal (“Request”), a copy of which was provided to the applicant.

3.  By another fax dated 15 September 2025, the Immigration Department informed the Court that the applicant was detained at Castle Peak Bay Immigration Centre and forwarded a Request dated 15 September 2025 signed by the applicant.  The Registrar took the view that the Request was incomplete in that it had incorrectly stated an address that is not the applicant’s then current address at the Immigration Centre, and directed on 18 September 2025 that the applicant should re-lodge a properly completed Request.

4.  On 9 October 2025, the Immigration Department wrote to inform the Registrar of Civil Appeals that the applicant was one of the non-refoulement claimants removed out of Hong Kong during the period from 29 September to 5 October 2025.  The applicant had not provided an address in his home country for the purpose of communicating with him.  In the circumstances, we have proceeded to consider the appeal on the papers before us.

5.  The applicant is a national of Bangladesh, aged 39.  After entering Hong Kong illegally, he surrendered to the Immigration Department on 1 April 2019 and raised a non-refoulement claim based on fear of being harmed or killed by the supporters of the Awami League because he supported their rivalry the Bangladesh Nationalist Party.  The details of his claim were set out at [10] to [35] of the Board’s decision and summarized in [2] to [5] of the Form CALL-1.

6.  The Director rejected the applicant’s non-refoulement claim having regard to the torture risk[2], BOR 3 risk^[3], persecution risk^[4] and BOR 2 risk^[5] ground.  The applicant appealed against the Director’s decision to the Board, and requested that his appeal be dealt with on papers without an oral hearing.   

7.  The Board dismissed his appeal on the bases that it had doubts over the credibility of the applicant’s claim and even accepting his factual account his claim did not meet the requirements for affording non-refoulement protection. The Board also found internal relocation alternatives were reasonably available to the applicant which would reduce or remove any risk of harm that he might face.

8.  The applicant filed a Form 86 and a supporting affirmation on 19 September 2019 to seek leave to apply for judicial review against the Board’s decision.  The Judge heard the application at a hearing held on 17 July 2025.  By a Form CALL-1 dated 14 August 2025, the Judge held that the intended judicial review has no prospect of success and refused the leave application.  The applicant’s grounds in support of his intended judicial review and the Judge’s reasons for rejecting them were set out in [10] to [14] of the Form CALL-1:

“10. On 19 September 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward various grounds for his intended challenge, of which he confirmed at the hearing as follows:

(1) That the Board reached the decision wrongly in assessing his non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country;

(2) That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in his case which led to an unfair outcome of rejecting his claim;

(3) That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing his claim;

(4) That the Board had listed relevant COI which supported the Applicant’s aversions that the police in her country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void; and

(5) That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions.

11. These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were state acquiescence or extra-judicial killings to the Applicant’s case when on the factual basis of even his own case that it was essentially a personal dispute between him and Ripon without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13. In the Applicant’s case, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14. In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

9.  By a Notice of Appeal filed on 25 August 2025, the applicant sought to appeal the Judge’s decision to this court.  In the Notice of Appeal, the applicant stated that the Judge’s decision was the same as the Board’s and the Director’s decisions and did not give him justice.  Other than this, it did not set out any specific grounds of appeal.  

10.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

11.  Further, it is well established that 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 and the Director as they are 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.

12.  We are of the view that the matters raised in the Notice of Appeal do not constitute viable grounds of appeal.  Firstly, although the applicant asserted that the Judge’s decision did not give him justice, he has failed to identify or specify in what way the Judge has erred or the injustice that he complains of.  Secondly, we are satisfied that the Judge had given proper and adequate reasons for his conclusion that the intended judicial review has no prospect of success. 

13.  As the applicant’s appeal is devoid of merits, we order that it be dismissed.

14.  The applicant has been repatriated and he has not left an address for service. Having regard to the fact that his last known address in Hong Kong is the Castle Peak Bay Immigration Centre, and that this judgment will be uploaded to the Judiciary website which can be accessed by the public, we consider it is appropriate to dispense with service of this judgment on the applicant.