RE SHB

CACV 397/2024, [2025] HKCA 71

On Appeal From [2024] HKCFI 2332

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 397 OF 2024

(ON APPEAL FROM HCAL NO. 77 OF 2019)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

1)  The appeal

1.  This is an appeal by the applicant[1] against the decision of Deputy High Court Judge To (“the Judge”)  of 13 September 2024 (“the Judge’s Decision”)  in which he refused to grant leave to him to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”)  of 23 October 2020 (“the Board’s Decision”).

2)  Background

2.  The applicant is a national of Bangladesh. He entered Hong Kong in 2001 on a short visa and remained in Hong Kong thereafter despite the visa expiry for around 11 years undetected. On 28 April 2012, the applicant was arrested by the police. Shortly after his arrest, the applicant lodged a torture claim which was refused by the Director of Immigration (“the Director”)  on 24 October 2012. He petitioned against the refusal. The Adjudicator dismissed the petition on 29 November 2012. On 14 December 2012, the applicant sought leave to apply for judicial review against the Adjudicator’s decision, and leave was refused by Chung J on 19 December 2012. On 11 January 2013, the applicant applied for an extension of time to appeal, which was dismissed by the Court on 4 February 2013[2].

3.  On 7 February 2013, the applicant lodged a non-refoulement claim under the unified screening mechanism which was assessed under BOR 3 risk, BOR 2 risk and persecution risk (except for torture risk which was previously disposed of)[3]. The applicant’s claims were refused by the Director in his decision dated 20 February 2019. The applicant filed a notice of appeal against the Director’s decision of 20 February 2019 in March 2019[4]. After a hearing held on 21 May 2020, the Board dismissed the applicant’s appeal on 23 October 2020 (that is, the Board’s Decision). On 22 January 2021, the applicant sought leave to apply for judicial review against the Board’s Decision before the Court. The Judge refused leave on 13 September 2024[5].

4.  The basis of the applicant’s claim is that if he returns he would be harmed or killed by extortionists for failing to meet  their monetary demand and by members of the Awami League because of his family’s association with the rival party, the Bangladesh Nationalist Party if refouled[6].

5.  The background facts have been summarised in the Judge’s Decision at [8] to [16].

6.  The Board’s findings have been summarised in the Judge’s Decision dated 13 September 2024 at [17]-[30].

3)  Decisions of the Judge

7.  The Judge refused to grant leave to apply for leave to apply for judicial review for the reason that even on the applicant’s own evidence, the Board had found that there was no factual basis to support the applicant’s claim for non-refoulement protection. The applicant failed to discharge his burden of proving his fears and risks. No error of law or procedural unfairness could be found in the Board’s decision. The Judge was satisfied that the applicant’s claims were not reasonably arguable. There was no realistic prospect of success in the applicant’s intended judicial review application[7].

4)  Grounds of appeal

8.  The applicant in the notice of appeal stated bare assertions without particulars that consisted of the following:

‘ I am writing this grounds regarding my judicial refused by high court. But still I have problem in my country I will explain to honourable judge in my oral hearing properly with my supporting documents’

9.  The applicant’s written submission can be summarised as follows :

i.  there are still problems in his country and if he goes back his life will be uncertain;

ii.  the applicant gave supporting document during refoulement interview but they were disregarded. The applicant needs more time to get more documents in support;

iii.  the applicant cannot afford to pay for legal representation;

iv.  the applicant and his family are affiliated with Bangladesh Nationalist Party (“BNP”)  but the ruling party is Awami League;

v.  people from the BNP were killed by the ruling forces;

vi.  the applicant will obtain supporting documents as soon as possible.

10.  At the hearing of the appeal, the applicant said that he was mentally prepared to return to his country. However, since the political situation there was not good, he would return when there were re-elections there.

5)  Our view

11.  We are of the view that the applicant’s appeal is without merit.  His grounds of appeal and written submission consist of bare allegations without particulars or specifics.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave to apply for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong : see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

12.  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in assessing the Board’s Decision. None of the arguments raised by the applicant shows the Judge has made any error of law. 

13.  We see no basis to disturb the Judge’s Decision.  Accordingly, the appeal is dismissed.