ISLAM JOHIRUL v. TORTURE CLAIMS APPEAL BOARD

CACV 2/2025, [2025] HKCA 496

On Appeal from [2024] HKCFI 3605

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 2 OF 2025

(ON APPEAL FROM HCAL NO 3649 OF 2019)

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J U D G M E N T

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

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 24 December 2024 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 29 November 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 20 December 2018.

BACKGROUND

2.  The Applicant is a national of Bangladesh. He claimed to have entered Hong Kong illegally on 10 March 2015, and was arrested by the police on the same date. After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on 13 March 2015 on the basis that, if refouled, he would be harmed or killed by members of the Awami League (“AL”) in his home district because he was a member of the Bangladesh National Party (“BNP”), a political rival of AL, and he was actively involved in the political activities organised by BNP. Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form.

3.  By a Notice of Decision dated 20 December 2018 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim with reference to all applicable risks: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.  The Applicant appealed the Director’s Decision to the Board. On 29 November 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §8 of the CALL-1 Form, as follows:

“In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from those local AL supporters that caused him to leave his country to come to Hong Kong to seek protection, that even if his claimed account were true that there was no reliable evidence of any real intention of those AL supporters to seriously harm or kill him or any political reason for them to specifically target him for harm, and the fact that he had remained in Bangladesh for some 2 ½ years without any incidents since his last alleged assault before departing the country that it is not accepted that he will face any risk of any harm of any sort upon his return to Bangladesh that it concluded that his claim for non-refoulement protection failed on all applicable grounds.”

THE JUDGE’S DECISION

5.  On 9 December 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86 or his supporting affirmation of the same date.

6.  On 24 December 2024, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[9] On 9 December 2019, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

[10] 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…

[11] In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

…

[13] 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.”

THIS APPEAL

7.  In his Notice of Appeal filed on 2 January 2025, the Applicant raised the following ground of appeal:

“… the gravity of my circumstances have [not] been weighed or realized by both putative Respondents while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.”

8.  In his supporting affirmation filed on the same date, the Applicant stated that he understood that there was a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review, and he had been informed that “the Director of Immigration and the Adjudicator did not see the grounds to reverse their decisions”.

9.  In his 7-page written submissions filed on 22 April 2025, the Applicant made generic submissions on some general principles of law relating to non-refoulement claims, but failed to explain how they were applicable to his case.

10.  At the hearing of the appeal, the Applicant had nothing to add to his written submissions.

DISCUSSION

11.  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’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

12.  Further, the 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. 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: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

13.  The Applicant’s complaint that he was not given an opportunity to plead his case properly has no substance because, as mentioned by the Judge at §9 of his decision, the Applicant did not set out any ground for seeking relief in his Form 86 or supporting affirmation, and failed to do so when he appeared before the Judge in the proceedings below.

14.  The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order.

15.  The Applicant’s appeal against the Order has no merit, and is dismissed.