PRODIP GOWALA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 244/2025 , [2025] HKCA 974

On appeal from [2025] HKCFI 1590

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 244 OF 2025

(ON APPEAL FROM HCAL NO 3788 OF 2019)

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J U D G M E N T

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

Background

1.  On 22 April 2025, Deputy High Court Judge Philips Wong refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”)  concerning his non-refoulement claim[1]. The applicant filed a Notice of Appeal against the decision on 29 April 2025.

2.  The applicant is a national of Bangladesh.  He entered Hong Kong as a visitor on 28 September 2006 and subsequently overstayed.  He was arrested by the immigration officer on 24 October 2006.  He lodged a torture claim on 2 July 2009, which was treated as a non-refoulement claim after the commencement of the unified screening mechanism.  His claim was made on the following bases:

(1)  His right of religious belief would be restricted and he would be persecuted because he is a Hindu who often face discrimination and suppression from the general community in Bangladesh; and

(2)  He would be harmed or killed by people of the Bangladesh Nationalist Party (“BNP”)  because he is a supporter of its opposite party, the Awami League (“AL”).

3.  By a Notice of Decision dated 10 February 2015, the Director of Immigration (“the Director”)  rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 3 risk[3] and persecution risk[4]. 

4.  By a Notice of Further Decision dated 29 November 2016, the Director rejected the applicant’s claim on BOR 2 risk[5], in the absence of response from the applicant to the invitation to submit additional facts which may be relevant to his non-refoulement claim.

5.  He lodged an appeal to the Board.  He attended the hearing before the Board on 12 January 2017 but refused to give evidence. The Board considered that the BNP people had no intention to seriously harm the applicant as they did not inflict serious harm on him even when they were armed with weapons and had ample opportunity to do so.  The Board noted that the applicant was merely a supporter of AL and his influence in the party was minimal.  The Board did not accept that the applicant had the perceived danger that he claimed.  The Board also found the level of risk of serious harm or persecution of the applicant for being a Hindu is low as the country of origin information shows that the level of such risk by the state, society or by the extremists is generally low, and the applicant failed to demonstrate any factor which would increase his risk.  Further, internal relocation options would be available to the applicant in Bangladesh and he failed to demonstrate that the state is unwilling to offer protection to him.  The Board concluded that the applicant’s non-refoulement protection application failed on all applicable grounds and dismissed the appeal on 13 December 2019.

The judge’s decision

6.  The applicant filed a Form 86 and an affirmation on 19 December 2019 to seek leave to apply for judicial review against the decision of the Board.  His grounds for his intended challenge are that the Board was in breach of procedural fairness as follows:

(1)  the Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirements;

(2)  the Board failed to meet the greater care and duty owed to a self-represented claimant;

(3)  the Board’s decision to reject the applicant’s appeal was unreasonable or irrational in the public law sense or was the result of procedural errors or unfairness;

(4)  life and limb are in jeopardy and the applicant’s fundamental human right not to be subjected to torture is involved;

(5)  the adjudicator acted in a procedurally unfair manner in dealing with the applicant’s appeal;

(6)  the applicant would face hardship if he returns to his home country; and

(7)  the Board had significantly relied on the source of news which is not officially recognised or is simply hearsay.

7.  The leave application was heard before Deputy High Court Judge Philips Wong on 17 March 2025.  The judge found that the applicant’s grounds are just vague assertions without particulars or elaboration.  The judge also found that the Board had thoroughly considered the applicant’s claim and was entitled to come to its conclusion.

8.  The applicant mentioned at the hearing there were events in Bangladesh after 5 August 2024 which showed that his life would be in danger if he should return.  He claimed that the daughter of his paternal uncle was abducted from the family home and forced to marry by some people from BNP.  There was no application to admit any new evidence.  The events as related were vague and not supported by documentary evidence.  The applicant could not give satisfactory answer of the relevance of these events to his leave application.  There was no suggestion that the alleged abduction and forced marriage were committed because of him.  The judge did not find the new story in the applicant’s submissions and not given under oath apparently credible. He did not think the new story would have an important influence on the result of the case and he would have rejected the application to admit new evidence if such an application was made.

9.  The judge held there is no error of law, procedural unfairness or irrationality in the Board’s decision.  Thus, the leave application was dismissed on 22 April 2025.

Grounds of appeal

10.  The applicant stated the following grounds of appeal in the Notice of Appeal filed on 29 April 2025:

(1)  The court did not consider his problem properly.  The judge made the decision by following the unreasonable decisions of the Director and the Board;

(2)  He has severe problem in his home country.  If he goes back, he would be killed by his enemies.

11.  His further contentions in his written submissions may be summarised as follows:

(1)  The judge was wrong as a matter of law for not having applied the principle of irrationality to the decisions made by the Director and the Board;

(2)  The judge was wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director whereby the Director and the Board were required to give reasons justifying their decisions;

(3)  High standards of fairness are required in the determination of torture claims but the judge reviewed the matter lightly;

(4)  The applicant’s problems are very severe in his home country and he has submitted all the proofs but the judge has not applied greater care and disappointed the applicant;

(5)  The judge did not analyse his case properly and the decision was unreasonable;

(6)  The adjudicator has failed to give sufficient chance for the applicant to arrange for relevant evidence to support his non-refoulement claims as well as his appeal;

(7)  The adjudicator was irrational in failing to evaluate and make finding as to whether there is a consistent pattern of gross and mass violation of human rights in Bangladesh;

(8)  The adjudicator was irrational in failing to assess whether state protection existed in Bangladesh and misdirected himself as to the extended meaning of state protection.

Legal principles

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.

13.  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 scrutinising the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  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.

14.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

15.  The applicant’s grounds and submissions are just bare assertions which are not supported by evidence and/or sufficient particulars.  In particular, the Board and the judge had provided detailed reasons for their respective decisions and their decisions are well founded. The applicant failed to adduce any evidence before the judge to refute the findings of the Board.  He failed to show that the judge had made any error of law or failed to take into account relevant matters or was otherwise plainly wrong.

16.  Therefore, the appeal is devoid of merits and is dismissed accordingly.