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CACV 511/2024, [2025] HKCA 487
On Appeal From [2024] HKCFI 2880
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 511 OF 2024
(ON APPEAL FROM HCAL 2146 OF 2019)
________________________
| RE |
Nazrul Islam |
Applicant |
________________________
| Before: |
Hon Barma JA and Lisa Wong J in Court |
| Date of Hearing: |
7 May 2025 |
| Date of Judgment: |
4 June 2025 |
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J U D G M E N T
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Hon Lisa Wong J (giving the Judgment of the Court):
The appeal
1. This is an appeal by the applicant, a national of Bangladesh, against the order made by Deputy High Court Judge K W Lung (“Judge”) on 15 November 2024 (“Judge’s Decision”) refusing him leave to commence judicial review proceedings. The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board/Non-refoulement Petition Office (“Board”) given on 5 July 2019 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”) by a notice of decision dated 22 March 2018 (“Director’s Decision”).
Basis and allegations in support of NRF Claim
2. The basis of the NRF Claim made by the applicant, a national of Bangladesh, is a fear of being killed by a man named Anwar, a supporter of the Awami League (“AL”) and a notorious extortionist, and his associates and other members from the AL.
3. The circumstances giving rise to such alleged fear have been set out in detail in paragraph 8 of the Director’s Decision and paragraphs 9 to 18 of the Board’s Decision and in gist in paragraphs 3 to 6 of the Judge’s Decision embodied in the Form CALL-1 dated 15 November 2024, [2024] HKCFI 2880 (“Form CALL-1”).
4. Briefly:
(1) The applicant had, since he was attending high school, been a member of the Bangladesh Nationalist Party (“BNP”), a rival political party to the AL.
(2) In around 2006, the applicant was verbally threatened by AL members as he had refused to join the AL. He was also assaulted and injured at a BNP rally, where an explosion took place.
(3) In fear of being further assaulted, and that a warrant might be issued for his arrest, he fled Bangladesh under a false identity in March 2007.
Overstaying in Hong Kong and lodgment of torture claim and NRF Claim
5. The applicant arrived in Hong Kong from Mainland China on 17 March 2007 under a false identity. He was permitted to remain as a visitor until 24 March 2007. However, he did not depart and had been overstaying since 25 March 2007. On 8 July 2007, the applicant was arrested by the police for overstaying.
6. The applicant lodged a torture claim under Part VIIC of the Immigration Ordinance, Cap 115 (“IO”). The torture claim was rejected by the Director on 10 July 2013. The applicant did not appeal against such decision.
7. After the coming into force of the Unified Screening Mechanism in 2014, the applicant’s claim was processed as a NRF Claim on all applicable grounds except torture risk[1] which had already been rejected. The NRF Claim was thus assessed for the remaining grounds for non-refoulement protection: persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk.[4]
Director’s Decision
8. The Director assessed the applicant’s NRF Claim based on the information he had provided in his Torture Claim Form dated 5 June 2013, his Supplementary Claim Form dated 21 February 2018 (“SCF”) (submitted through the Duty Lawyer Service which was then advising and representing the applicant) and at the screening interview by the Director’s representative(s) on 16 March 2018.
9. The Director found the NRF Claim unsubstantiated under all 3 remaining applicable grounds. The Director found, inter alia, that (1) the risk of harm against the applicant was low should he return to Bangladesh, as the past ill-treatment towards him by AL members had been of a low intensity and frequency; (2) any adverse interest in him of AL members would have diminished by reason of his long absence from Bangladesh; and (3) suitable options of internal relocation were available.
Appeal to Board and Board’s Decision
10. The applicant appealed against the Director’s Decision to the Board.
11. The Board conducted a rehearing of the NRF Claim on 10 April 2019, at which the applicant testified before, and answered questions by, the Board.
12. The Board dismissed the appeal on all 3 grounds for non-refoulement protection for the following reasons.
13. The Board found the applicant’s basis on which his claim was based to be extremely vague and not credible. In particular, the Board rejected the applicant’s claim that he had been an active BNP member. The Board was also unconvinced, on the evidence, that any warrant had been issued for the applicant’s arrest, or that he was a target for members of AL.
Application for leave for judicial review and Judge’s Decision
14. By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued in HCAL 2146/2019 on 26 July 2019 and the supporting affirmation filed on the same day, the applicant sought leave to apply for judicial review of the Board’s Decision.
15. The Form 86 set out these proposed grounds for judicial review, that (1) the Board had unlawfully fettered its discretion “by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement”; (2) the Board acted in a procedurally unfair manner in dealing with the applicant’s appeal; (3) the Board’s Decision was unreasonable or irrational in the public law sense; and (4) the Board failed to meet the greater care and duty owed to the applicant, who was self-represented.
16. Apart from exhibiting a copy of the Board’s Decision, the applicant’s supporting affirmation of the same date essentially just recited the factual and procedural background to his case and repeated the said proposed grounds for judicial review.
17. The leave application was heard on 14 October 2024 and the applicant appeared in person before the Judge.
18. Having heard the applicant and considered the paper, the Judge refused to grant leave to apply for judicial review of the Board’s Decision for the reasons set out at [15] – [21] of the Form CALL-1:
“15. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).
16. 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 the Board was wrong because it did not believe his evidence.
17. 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.’
18. The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. Those grounds under paragraph 14 are his bare assertions without any evidence in support. They are not valid to challenge the Board’s Decision. Assessment of the evidence is within the Board’s discretion.
19. There is no reason that the Court should interfere with the Board’s finding of the facts.
20. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.
21. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”
Appeal to Court of Appeal - grounds of appeal and submission
19. By the notice of appeal filed herein on 28 November 2024, the applicant appealed against the refusal of leave for judicial review, without stating any grounds of appeal, properly so called. The applicant merely repeated that he would face hardship should he be refouled by reason that he would be “killed by [his] enemies”. He emphasised that his life was “not safe…there”. Finally, the applicant, without giving any particulars, expressed his disagreement with the Board and Judge’s Decisions. For instance, in suggesting that the Board’s Decision was based on “hearsay”, the applicant has not identified the “hearsay” in question.
20. By the written submission lodged on 9 April 2025, the applicant raised, inter alia, the following purported grounds: (1) the Judge was “wrong as a matter of law for not having applied the principle of irrationality to the decisions made by [the Director and the Board]”; (2) the Judge failed to conclude that the Board had failed to observe high standards of fairness; (3) the Judge failed to apply the principle of “procedural unfairness” to the Board’s Decision; and (4) the Judge failed to analyse the applicant’s claim “properly”. The applicant also in his submissions repeated the hardships he would allegedly face should he be refouled to Bangladesh.
21. The applicant appeared in person at the hearing on 7 May 2025. He appealed for more time in Hong Kong because the situation in Bangladesh was still unstable. He also informed the court that he has got married in Hong Kong.
Discussion
Court of First Instance’s role in judicial review in non-refoulement claim
22. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].
Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim
23. An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst at [14(2) & (4)].
Appeal has no merit
24. The applicant’s so-called proposed grounds for judicial reviews were but general and bare assertions without any supporting particulars or evidence. Whilst phrases such as “procedural impropriety”, “unfairness” and “irrationality” were used, the applicant plainly failed to articulate any matters which could properly give rise to a ground based on error of law, procedural unfairness or irrationality on the part of the Board. The application for leave to apply for judicial review was bound to fail. The Judge did not err in refusing leave.
25. We could not discern from either the applicant’s notice of appeal or the written submissions any matters which could form a basis upon which the Judge’s Decision could be disturbed. The applicant has failed to articulate any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong. Nothing he has raised merits serious consideration as a potential basis to interfere with the Judge’s Decision.
26. In any event, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that both are in order.
Disposition
27. For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.
(Aarif Barma)
Justice of Appeal
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(Lisa Wong)
Judge of the
Court of First Instance
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The applicant appeared in person
[1] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the IO which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[2] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[3] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383) (“HKBORO”).
[4] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the HKBORO.
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