RE DUTTA AMAR

CACV 234/2025, [2025] HKCA 1015

On appeal from [2025] HKCFI 1582

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 234 OF 2025

(ON APPEAL FROM HCAL NO. 2995 OF 2019)

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J U D G M E N T

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Hon K Yeung J (giving the Judgment of the Court):

A.  The appeal

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge To (the “Judge”) given on 22 April 2025 ([2025] HKCFI 1582) dismissing his application for leave to apply for judicial review. The intended judicial review was in respect of the decision of the Torture Claims Appeal Board (the “Board”) dated 20 September 2019, which dismissed his appeal against the decision of the Director of Immigration (the “Director”) dated 19 September 2018 rejecting his non-refoulement protection claim.

B.  Background

2.  The applicant is a Bengladeshi national. He is now aged 39. He entered Hong Kong illegally on 24 August 2015. He surrendered himself to the Immigration Department on 26 August 2015. He lodged a non-refoulement claim on 12 May 2016 and was released on recognizance on 10 June 2016. On 6 July 2018, he was arrested and charged for illegally remaining in Hong Kong and the case was adjourned pending the outcome of his non-refoulement claim. His claim was based on fear of being harmed or killed by Muslim villagers over some land disputes in Bangladesh. His claim was set out at [7] of the Director’s decision, and [8] to [19] of the Board’s decision.

3.  In gist, the applicant was born in Village Chonpur in Muradnagar, Bangladesh. His ethnic group is Bengali and he came from a Hindu family. The applicant claimed that he and his family were victims of oppression in the dominant Muslim community. The Muslims vandalized their ancestral properties and occupied their lands. Eventually, the applicant and his family were displaced from their home by the Muslims’ occupation in 2001. This prompted his family to lodge a court case against some senior leaders of the Muslim community, who in turn threatened the applicant and his family to drop the case. His family eventually resettled in Comilla while the applicant fled to Hong Kong after his relatives in India had refused to take him in.

C.  The Director’s Decision

4.  The applicant’s non-refoulement claim was made under the grounds of torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4]. By his decision dated 19 September 2018, the Director rejected the applicant’s non-refoulement claim on all grounds.

D.  The Board’s Decision

5.  The applicant appealed to the Board. A hearing took place on 22 May 2019. The applicant testified. In its decision dated 20 September 2019, the Board dismissed the appeal.

6.  In summary, the Board found material inconsistencies in the applicant’s evidence regarding the alleged threats and harassment from the Muslims, which inconsistencies cast serious doubts on the credibility of the applicant’s claim. The Board did not accept the applicant’s claim that he was the target of the Muslim community, as opposed to his father who was the owner of the land in dispute ([42]). The Board further found on the basis of the applicant’s own evidence that he and his family had never been harmed by the Muslims when they were in Bangladesh ([43]). While the Board acknowledged on the basis of the Country of Origin Information (“COI”) that there had been a history of violence and harassment against Hindus by the Muslims in Bangladesh, the applicant’s specific claims on the basis of his personal factors (which could have served to elevate the general risk disclosed in the COI) were neither credible nor plausible. In conclusion, the Board was not satisfied that the applicant had established an entitlement to non-refoulement protection under any of the applicable grounds.

E.  The Judge’s Decision

7.  By Form 86 dated 11 October 2019, the applicant applied for leave to judicially review the Board’s decision. In his supporting affirmation, the applicant repeated the background and the factual basis of his claim. He put forward his grounds of challenge, which may be summarised as follows:

(1)  The Board had unlawfully fettered its discretion by refusing the appeal on the ground that it was not satisfied with the requirements;

(2)  The adjudicator had acted in a procedurally unfair manner, that his decision was unreasonable or irrational as a result of procedural errors or unfairness, and that he had failed to meet the greater care and duty owed to a self-represented claimant;

(3)  The adjudicator did not conduct any analysis of the supporting documents or consider the grounds of his claim as regards BOR 2 risk;

(4)  The Board had relied on source of news which was not officially recognised or was simply hearsay. The Board had also relied on cases which were outdated, resulting in its groundless speculation that it was safe for him to return to his country.

8.  The Judge heard the leave application on 7 April 2025. By Form CALL-1 dated 22 April 2025, the Judge dismissed the application and gave his reasons at [13] to [15] as follows:

“Grounds for judicial review

13. After the legal principles in the precedent section had been explained to him, the Applicant said he had no complaint above errors of law, procedural unfairness or irrationality in the Decision and left it to the Court to look for such vitiating elements in the Decision for him.

14. However, in his supporting affirmation, he annexed a four-page document, titled “Grounds on which relief is sought”. They contain general principles, general complaints of unreasonableness or irrationality, breach of duty of care owed to an unrepresented claimant, reliance on outdated cases and information from non-credible sources, etc. They are all lacking in specifics and particulars. When asked, he was unable to provide particulars. He only submitted that the conflict between Muslims and Hindus still exists in his village and he would suffer hardship for being in the minority. He said he does not want to go back to Bangladesh and wants to stay in Hong Kong. These are just statement of facts and statement of his wish which do not constitute arguable grounds of application. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and irrationality in the Decision.

Overall scrutiny

15. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board conducted a rehearing. It assessed the Applicant’s evidence carefully, tested it against common sense and inherent probability. It found him incredible as regards the core issues of his claim. It found numerous and significant inconsistencies between his evidence in the NCF and in his testimony which go to the case of his claim. It found the Applicant is not a witness of truth. It did not accept he had proved the fundamental basis of his claim and that he would face a real risk that he would suffer serious harms at the hands of these Muslim villagers, should he return to Bangladesh. It gave full reasons for its finding. It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law, procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.”

F.  Grounds of appeal

9.  By notice of appeal dated 28 April 2025, the applicant appealed against the Judge’s decision. The grounds of appeal in the notice of appeal stated that the court did not consider the problem faced by the applicant in his home country but simply adopted the decisions of the Director and the Board. He did not file any supporting affirmation.

10.  In the applicant’s written submissions lodged on 17 September 2025, he repeated that it would not be safe for him to return to his home country as his enemy was still looking for him. He further stated that:

(1)  High standards of fairness are required on the part of the decision maker in the determination of torture claims as life and limb are in jeopardy and the applicant’s fundamental human right not to be subjected to torture is involved;

(2)  The Judge did not consider the principles of rationality, procedural fairness and reasonableness in considering the decisions of the Board and the Director;

(3)  The applicant would face hardship in his home country and the Board had relied significantly on source of news which was not officially recognised or was simply hearsay;

(4)  The decision of the Board was irrational as the adjudicator had failed to evaluate and assess whether there existed a consistent pattern of gross and mass violation of human rights, or the availability of state protection in his home country.

11.  The applicant made no oral submission during the hearing of the appeal.

G.  Our reasons for judgment

12.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14. In summary, the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the court should not usurp the role of the Board. Assessment of evidence and COI materials, 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.

13.  Applying the established legal principles set out above, we are of the view that the appeal has no merit. Our reasons are as follows:

(1)  In respect of the decision of the Director, as the applicant had appealed it to the Board, it had been superseded by the Board’s decision, which represents the final decision on the claim at the end of its processing: Re Moshsin Ali [2018] HKCA 549 at §45. Accordingly, it is not open to the applicant to challenge the Director’s decision by way of judicial review. The complaints levelled against the Director’s decision are therefore irrelevant, and the applicant’s appeal cannot be advanced thereby;

(2)  As for the Board’s decision, the Board rejected the factual basis of the applicant’s claim due to evidential discrepancies. The Board was entitled to so find. The applicant has failed to identify and particularise any error in the Board’s assessment;

(3)  The applicant’s assertion that the Judge had only reviewed the Board’s decision lightly is vague and devoid of particulars. The applicant merely repeats his complaints. He has failed to identify with particulars any error on the part of the Judge. It is clear from the Judge’s decision and his reasoning that he did consider the grounds in support of the leave application, and had allowed the applicant the opportunity to substantiate them. The Judge found them to be unarguable and devoid of merits. The Judge, having scrutinised the Board’s decision and for reasons given at [15] of the decision, found no proper basis to disturb it. We agree with the Judge that the grounds relied on by the applicant are unarguable. There is no proper basis for this court to interfere.

H.  Order

14.  For the above reasons, we are of the view that the applicant’s appeal is devoid of merit. We dismiss the same.