ISLAM MD ASHRAFUL v. TORTURE CLAIMS APPEAL BOARD

CACV 435/2024, [2025] HKCA 431

On Appeal From [2024] HKCFI 2697

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 435 OF 2024

(ON APPEAL FROM HCAL NO 412 OF 2023)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) on 8 October 2024[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 19 January 2023. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 11 January 2022 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh born in 1989. He claimed to have entered Hong Kong illegally from Mainland China on 20 December 2019 and was subsequently arrested by the police on 19 February 2021. The applicant lodged a claim for non-refoulement protection on 23 February 2021 and submitted his non-refoulement claim form dated 18 October 2021. The applicant’s claim was made on the basis that if he returned to Bangladesh, the supporters of the Awami League Party (“AL”) would harm or kill him due to his affiliation with opposing political parties, namely the Jamaat-e-Islami party and subsequently the Bangladesh Nationalist Party, and/or his neighbours (“Neighbours”) would harm or kill him due to his failure to repay a loan owed to them. The factual background of the applicant’s claim was set out at [41] of the Board’s decision.

3.  By notice of decision dated 11 January 2022, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against him. Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

4.  The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 29 November 2022, during which the applicant gave evidence and answered questions from the Board. In favour of the applicant’s credibility, the Board accepted that the applicant was involved in two incidents with supporters of AL and that he had borrowed money from the Neighbours but was unable to repay the debt. However, the Board did not accept that the applicant was personally targeted by AL as claimed, that he was targeted by the Neighbours especially in consideration of an alleged threat that they would take his family’s land and property as compensation for his debt, that AL or the Neighbours would find and harm him all over the country, or that the local police colluded with AL to target him. In addition, the Board also found the applicant’s failure to seek non-refoulement protection at the first opportunity in Mainland China or when he first arrived in Hong Kong to be detrimental to his credibility, since he only did so after he was arrested more than one year from arrival in Hong Kong.

5.  The Board proceeded to consider the risk of harm faced by the applicant if he was refouled to Bangladesh. It found there was in fact no real risk of harm if the applicant returned to Bangladesh, because his problems were localized, the alleged AL supporters and the Neighbours were non-state actors, he did not encounter any problems when he left the country through official immigration channels on several occasions, there were higher organizations available to him for protection from the local police so state protection could be available to him, and internal relocation to Khulna or Chittagong would be suitable for him.

6.  In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to Bangladesh. By its written decision dated 19 January 2023, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decision in the court below

7.  On 20 March 2023, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision. He did not specify any ground for judicial review in the Form 86. In the accompanying affirmation, his grounds included that the Board did not consider his claim and directly dismissed it, that he submitted documents in his native language but the Board did not accept them, that he was not given time to have those documents translated for submission, that the interpreter was unhelpful to and impatient with him, and that the interpreter informed him not to take a long time as he had another job. He further annexed the Board’s decision.

8.  On the applicant’s request, an oral hearing was held on 19 September 2024. The Judge considered the application on the basis of the documents and the applicant’s oral submissions. On 8 October 2024, the Judge issued his decision, refusing to grant leave to apply for judicial review. The reasons were set out in [11] to [16] of the Form CALL-1 as follows:

“ 11. On 20 March 2023 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) That the Adjudicator did not consider the Applicant’s claim properly and just dismissed it without even taking time to think about his life;

(2) That the Adjudicator failed to accept his submitted documents because they were in Bengali without translation and unreasonably refused to give him time to arrange for their translation;

(3) That the interpreter was unhelpful and impatient during the appeal hearing.

12. These are however just bare and vague assertions of the Applicant without any relevant or necessary particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or how did the Adjudicator fail to properly consider his claim or appeal, or in what way was the interpreter impatient or unhelpful when the record shows that the Applicant was able to make his representation to the Board with the assistance of the interpreter without any problem, or what documents that he tried to submit at the hearing but refused by the Board without translation when even now when he still failed to do so. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant either in his Form or at the hearing of his application before the Court, I do not find any of them reasonably arguable for his intended challenge.

13. 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: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risks of harm in his claim if real are localized ones and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15. 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.

16. For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.”

Appeal to this Court

9.  On 17 October 2024, the applicant filed his Notice of Appeal against the Judge’s decision. His stated grounds of appeal were, essentially, that there was no proper consideration of his supporting document and that the Judge failed to consider his human rights.

10.  The applicant has lodged written submissions in which he stated that there was no proper consideration of his supporting documents, that his human rights were protected, and that his friends have taken his home and threatened his family for repayment causing his family to hide, and attached a copy of his arrest warrant.

11.  On 17 February 2025, the court was notified by the Director that the applicant had been removed from Hong Kong on 5 December 2024. Accordingly, we determine this appeal on the basis of the written materials available. We will send a copy of this judgment and the sealed order to the Director and request that he use his best endeavours to forward them to the applicant.

Discussion

12.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. 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. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

13.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the applicant’s alleged problems were localized, the AL supporters and the Neighbours were not state actors, protection from higher authorities would be available if state protection was not, and internal relocation to Khulna or Chittagong would be suitable for the applicant. These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. In his written submissions, the applicant has submitted a two-page document in Bengali that was purportedly an arrest warrant against him as a debtor. An English translation of the said document has been obtained from the Court Language Section. As the Board’s assessment of the applicant’s risk of harm was already based on the applicant’s claim of having debt owed to the Neighbours as alleged, we are of the view that the applicant’s new document would not change the factual matrix in which the Board’s assessment or conclusion of the appeal was based. In the written submissions, the applicant further confirmed that he had “no arguable grounds”. As for the ground advanced relating to human rights, it consists of mere general and bald assertions regarding the decisions without any particulars. They do not constitute viable grounds of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20]. The applicant has failed to show any reasonably arguable ground for saying that the Board’s decision should be impugned due to public law errors.

14.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision. We are not satisfied that there is any error in the Judge’s decision.

15.  The applicant’s appeal is accordingly dismissed.