RE KAZI ASADUZZAMAN

CACV 332/2023, [2025] HKCA 849

On appeal from [2023] HKCFI 2507

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 332 OF 2023

(ON APPEAL FROM HCAL 990/2019)

____________________

____________________

___________________

J U D G M E N T

___________________

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

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 12 October 2023 refusing to grant leave for the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 4 April 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 12 July 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 10 April 2016, and he surrendered to the Immigration Department on 5 May 2016.  On 7 July 2016, he lodged a non-refoulement claim by written representations.  

3.  The applicant’s claim was based on a fear of being harmed or killed by members of the Awami League.  The details of the applicant’s claim have been summarised by the Judge at [4] to [6] of the Judge’s decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 12 July 2017 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk^[2], the BOR 3 risk^[3], the persecution risk^[4] and the torture risk^[5].  

5.  The applicant appealed to the Board against the Director’s Decision.  After an oral hearing on 12 November 2018, the Board dismissed the appeal by the Board’s Decision, which covered all applicable grounds for non-refoulement protection.  The Board found that the applicant’s evidence to be inconsistent and incredible, and that his evidence on material versions of events on which his claim of fear was based was contradicted by other evidence he had provided.  The Board found that the applicant was unable to show that there was a real risk of harm towards him at the hands of Awami League members should he be refouled.   

The Judge’s decision

6.  The applicant filed a Form 86 out of time on 11 April 2019, seeking to judicially review the Board’s Decision, without setting out any grounds.  In the applicant’s supporting affirmation, he repeated the factual background to his claim, and that due to the dangers he allegedly faced if he returned to Bangladesh, he wished to stay in Hong Kong for a longer period.   

7.  After summarising the facts and background of the case, giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant the applicant leave to apply for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [17] to [23] of the CALL-1 Form:

“17.   The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

18.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he wanted to stay here. But he could not say that the Board was wrong in its decision.

19.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13.(1) …Assessment of evidence and COI materials and 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.’

20.  The Board, for the reasons given above, did not believe his evidence on the facts of the applicant’s case. The applicant has not raised any valid ground to challenge the Board’s Decision.

21.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

22.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

23.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

Grounds for appeal

8.  In the Notice of Appeal filed on 20 October 2023, the applicant merely claimed that “the High Court did not give [him a] correct decision” and that he wished to challenge it.

9.  In his written submissions lodged on 3 November 2023, the applicant complained that the court “did not look [at his] argument”, did not fix an oral hearing for his leave application, and that there were “points” which he raised with the Judge but which the Judge failed to consider “at all”.

10.  The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

11.  The applicant has in the Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

12.  In his application in the court below, the applicant provided no particulars as to any respects in which the Board had acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

13.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

14.  The applicant’s complaint of there having been no oral hearing fixed for his leave application is clearly misconceived, as a hearing was in fact fixed on 30 January 2023 and the applicant appeared, and made submissions, before the Judge (see CALL-1 Form, [2]).

15.  Thus, as we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.

16.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.