AHMED RAZU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 164/2025, [2025] HKCA 793

On Appeal From [2025] HKCFI 1165

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 164 OF 2025

(ON APPEAL FROM HCAL NO 3686 OF 2019)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Andrew Chan J (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge (Non-refoulement Claims)  Philips Wong (“the Judge”)  dated 27 March 2025 (“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 6 December 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 23 September 2019.

BACKGROUND

2.  The Applicant is a national of Bangladesh.  He claimed that he entered Hong Kong illegally on 26 July 2019, and was arrested by the police on the same date[1]. After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on 28 July 2019 on the basis that, if refouled, he would be harmed or killed by (i)  members from the Awami League (“AL”)  because he supported another political party, the Bangladesh Nationalist Party (“BNP”), and that he had been a member of the Juba Dal, the youth wing of BNP, with the duty to help organise anti-government meetings, rallies and protests since 2018[2], and (ii)  the Bangladeshi police because he was on the hit list of the police and was wanted by the police for a criminal case of arson and vandalism filed against him in 2019[3]. He claimed that he was assaulted by some AL members in a protest on 30 December 2018, and by some police officers on 17 June 2019, but he was not seriously injured on both occasions[4].

3.  By a Notice of Decision dated 23 September 2019 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[5], BOR 2 risk[6], BOR 3 risk[7], and persecution risk[8]. 

4.  The Applicant appealed the Director’s Decision to the Board.  On 6 December 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  In essence, the Board held that there was no objective or reliable evidence to support the Applicant’s claim other than his bare assertions (see §§60-72 of the Board’s Decision).  The Board considered that on the available evidence, the nature and low intensity of the past ill-treatment from the AL members and the police of the Applicant indicated that there was a small future risk of harm to him upon his refoulement to Bangladesh (see §75 of the Board’s Decision).  In any event, the Board found that reasonable state protection would be available to the Applicant based on the relevant country of origin information (see §§77-86 of the Board’s Decision).   

THE JUDGE’S DECISION

5.  On 10 December 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the decision of the Board dated “6 November 2019”.  No ground for seeking relief was given in the Form 86.  In his supporting affirmation of the same date, the Applicant repeated his claimed for fear of returning to Bangladesh and asserted that the Director made the wrong decision in rejecting his claim without properly considering his situation in his home country[9]. Since the Director’s Decision had been overtaken by the Board’s Decision, the Judge amended the Form 86 such that, amongst other matters, the date of the decision of the Board which the Applicant sought to challenge was correctly stated, and the Board’s Decision was being treated as the subject matter of the application for leave to apply for judicial review.

6.  On 27 March 2025, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:

“[7] The applicable legal principles relating to application of this sort are well established. 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, country of origin information (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…

[8] In the Form, the Applicant did not provide any grounds in support of the Leave Application. In the supporting Affirmation, the Applicant alleged that the Director (presumably he meant the Board)  reached the wrong decision in assessing his claim. The Applicant alleged that the Director (presumably he meant the Board)  rejected the Applicant’s claim without proper inquiry and without carefully understanding his situation. To understand the Applicant’s claim fairly, the Applicant said the immigration officers ought to tour his country and ask those familiar with his case what real danger he would face if he is to return there.

[9] I do not consider the Applicant’s above contention meritorious. There is no legal basis to require the Director or the Board to actually visit the Applicant’s home country to conduct any investigation of a non-refoulement claim. Whilst the inquiry is one of joint endeavor, the burden is on the Applicant to prove his claims. In the present case, the Director and the Board had plainly conducted proper inquiries into all relevant matters.

[10] Having fully considered the Board’s Decision. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision was very comprehensive with adequate reasons provided. It satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. There is plainly no basis to say that the Board had failed to assess the Applicant’s claims properly.

[11] In the premises, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review and the Leave Application is hereby dismissed.

[12]  Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).  Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me, as well as the grounds advanced by the Applicant.”

THIS APPEAL

7.  In his Notice of Appeal filed on 1 April 2025, the Applicant states that he does not agree with the decision of the court, and repeats his fear of returning to Bangladesh on the ground that he would be killed by his enemies there.

8.  The Applicant has failed to lodge any written submissions in support of his appeal contrary to the directions given by the Registrar of Civil Appeals on 24 June 2025.  Accordingly, he is deemed to have waived the right to have an oral hearing of his appeal and elected to have his appeal disposed of on paper.  Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.

DISCUSSION

9.  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)).

10.  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.

11.  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.

12.  The Applicant’s appeal has no merit, and is dismissed.