ABDUL JABBAR v. TORTURE CLAIMS APPEAL BOARD

CACV 520/2025, [2026] HKCA 935

On Appeal From [2025] HKCFI 2769

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 520 OF 2025

(ON APPEAL FROM HCAL NO 2691 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 application by a non-refoulement claimant for relief from sanction for failing to comply with an unless order.

Background

2.  The applicant is a national of Bangladesh born in 1973.  His non-refoulement claim was made on the basis that if he were refouled, members of a rival political party would harm or kill him due to their political differences, and his brother-in-law would harm or kill him due to the misunderstanding that the applicant had advised his sister to divorce him.

3.  The applicant’s claim was dismissed by the Director of Immigration on 31 May 2018.  His appeal to the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“Board”) was dismissed on 4 September 2019.

4.  On 16 September 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review against the decision of the Board.  His leave application was dismissed by Deputy High Court Judge Bruno Chan on 10 July 2025.

5.  The applicant filed a notice of appeal on 21 July 2025 against the judge’s decision.  On the same date, the Registrar of Civil Appeals directed that the applicant should lodge with the court two sets of appeal bundle on or before 4 August 2025.  The applicant did not comply with this direction.

6.  On 11 November 2025, G Lam JA made an order that unless the applicant lodged the appeal bundles by 4pm on 5 December 2025, the appeal would stand dismissed without further order (“Unless Order”). The applicant did not lodge any appeal bundles by the prescribed time (or thereafter) and his appeal was dismissed on 5 December 2025 pursuant to the Unless Order.

7.  On 23 December 2025, the applicant filed the present summons to apply for relief from the sanction imposed by the Unless Order.

8.  Having considered the documents of this case, we consider it appropriate to determine this application on paper without an oral hearing pursuant to Order 59, rule 14A of the Rules of the High Court (Cap. 4A) (“RHC”).

Discussion

9.  Order 2 rule 4 of the RHC provides that where a party has failed to comply with a rule or court order, any sanction for failure to comply imposed by the rule or court order has effect unless the party in default applies to the Court for and obtains relief from the sanction within 14 days of the failure.

10.  Under Order 2 rule 5(1) of the RHC, when dealing with an application for relief from the sanction imposed by the failure to comply with a court order, the court shall consider all the circumstances, including, among other things, the interests of the administration of justice, whether the application for relief has been made promptly and whether there is a good explanation for the failure to comply with the unless order.

11.  The appeal was dismissed on 5 December 2025 for failure to comply with the Unless Order.  The summons was filed on 23 December 2025, after the expiry of the 14-day time limit prescribed under Order 2 rule 4.

12.  According to the court’s record, the letter dated 13 November 2025 (containing the Unless Order) sent to the applicant by registered post was returned by the Hong Kong Post and marked as “unclaimed”.  However, the same letter sent to the applicant’s same address by ordinary post and the cover letter dated 26 November 2025 (enclosing a sealed copy of the Unless Order and sent to the applicant’s same address by ordinary post) were not returned undelivered.  The applicant’s address on court record is the same as the address he stated on the present summons.  The applicant has not indicated any difficulty in receiving the court’s mail in a timely manner.   In fact, the applicant has not offered any explanation for the failure to comply with the Unless Order in his summons or affirmation.

13.  In any event, the court had already given an extension of time for lodging the appeal bundles and clearly stated the consequence of non-compliance in the Unless Order.

14.  Furthermore, the applicant’s appeal is unmeritorious.  The applicant stated that there was a new case filed against him in 2017, that he would be tortured and imprisoned if refouled due to political unrest, and that he would like the court to reconsider allowing him to remain in Hong Kong until the political situation begins to subside.  In the notice of appeal, the applicant also attached some Bengali documents with English translations that appear to relate to the “new case filed against him”, but there were no explanations of their relevance to his present non-refoulement claim.  The documents appear to be a first information report, order sheets, a letter, and a charge sheet, where the applicant is one of many people listed as the accused.

15.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the applicant’s behaviour was detrimental to his credibility and inconsistent with the behaviour of someone who genuinely feared for his safety, since he entered and exited Hong Kong on numerous occasions between 2004 and 2006 without taking any steps to seek non-refoulement protection in Mainland China or Hong Kong before his arrest by the Hong Kong police in 2006.  Even though the Board accepted the basic facts claimed by the applicant, it found that there was no real risk of harm upon refoulement as alleged, because the risk was localized, the risk of harm did not attain the minimum level of severity, there was no involvement of state officials, state protection or protection from the National Human Rights Commission would be available to the applicant, internal relocation to Khulna or Dhaka would be viable options for the applicant, and adequate medical treatment would be available to the applicant in Bangladesh.  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 show any reasonably arguable public law error in relation to the Board’s decision.

16.  According to the new documents attached to the notice of appeal, the applicant claims that there is a “new case” filed against him.  According to the English translation of the documents submitted to this court, it appears that the complaint was filed by a police officer in May 2017.  This is a new ground that does not appear to have been properly raised (save for the assertion in the Notice of Appeal) or considered in the court below.  It remains only an assertion in the Notice of Appeal.  Giving the applicant the benefit of the doubt without assessing the authenticity of the documents, there is no explanation why this was not raised by the applicant earlier in the lower court and its relevance to the applicant’s present claim for non-refoulement protection is not evident.  In light of the lack of essential particulars and explanations, we are of the view that there are no special circumstances that should incline this Court to consider these assertions which have not been raised before the Board or the judge below.

17.  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.

18.  For the above reasons, we decline to exercise the discretion to grant relief from sanction of the Unless Order. The applicant’s summons dated 23 December 2025 is accordingly dismissed.