ISLAM MD RAFIQUL v. TORTURE CLAIMS APPEAL BOARD

CACV 13/2025, [2025] HKCA 787

On Appeal From [2025] HKCFI 138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 13 OF 2025

(ON APPEAL FROM HCAL NO 2221 OF 2019)

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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 3 January 2025[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 26 July 2019. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 22 January 2019 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh born in 1964. He last entered Hong Kong as a visitor on 14 May 2018 and was permitted to remain until 28 May 2018, but he overstayed. On 30 May 2018, the applicant surrendered to the Immigration Department and subsequently submitted written significations indicating his intention to lodge a non-refoulement claim in Hong Kong dated 12 June 2018, 27 June 2018 and 10 July 2018. The applicant’s claim was made on the basis that if he returned to Bangladesh, the supporters of the Awami League (“AL”) would harm or kill him due to his support for a rival political party, the Jamaat-e-Islam. The factual background of the applicant’s claim was set out at [3] to [22] of the Board’s decision.

3.  By notice of decision dated 22 January 2019, 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 20 June 2019, during which the applicant gave evidence and answered questions from the Board. In favour of the applicant’s credibility, the Board found that his testimony was generally consistent and took no issue with his submitted documents. The Board accepted the applicant’s claims in relation to the money extortion incidents between himself and supporters of AL, the wrongly charged arson case against him, his two sets of heavy machinery being kept in the custody of the court, his wife being injured by the local leader of AL, and his business partner’s civil case filed against him.

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 the incidents were a localized problem, there was no state involvement, effective state protection would be available to him, and internal relocation to the City of Dhaka or other parts of the country would be a viable option for him given his extensive previous work experience.

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 26 July 2019, 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 6 August 2019, 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, he repeated his claim for non-refoulement protection. He also complained about the lack of legal representation at the appeal hearing before the Board, the insufficient time for preparation as he only received the hearing bundle a few days prior to the hearing, and that the hearing bundle was not in the Bengali language.

8.  The Judge considered the application on the basis of the documents and the submissions made by the applicant at the oral hearing held on 10 December 2024. On 3 January 2025, the Judge issued his decision, refusing to grant leave to apply for judicial review. The reasons were set out in [11] to [15] of the Form CALL-1 as follows:

“ 11. On 6 August 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 in which he just repeated his claim as before 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.

12. 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.

13. 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 risk of harm in his claim if real is a localized one 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.

14. 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.

15. 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 9 January 2025, the applicant filed his Notice of Appeal against the Judge’s decision. His stated ground of appeal was simply that he did not agree with the decision and would like to appeal against it.

10.  As the applicant did not lodge any written submissions, the scheduled hearing of his appeal was vacated pursuant to the directions of the Court.

11.  On 23 June 2025, the court was notified by the Director that the applicant had been removed from Hong Kong. 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 problems were localized, there was no state involvement, effective state protection would be available to him, and internal relocation to the City of Dhaka or other parts of the country would be a viable option for him. These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. The applicant has failed to raise and show any reasonably arguable public law error in relation to the Board’s decision.

14.  Equally, the applicant has not raised and 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.