RE ALAM CHIDDIQUE MOHAMMAD NUR

CACV 54/2026, [2026] HKCA 486

On Appeal From [2026] HKCFI 173

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 54 OF 2026

(ON APPEAL FROM HCAL NO 1192 OF 2021)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge (Non-Refoulement Claims) Lewis Law (“the Judge”) given on 16 January 2026[1] refusing his application for leave to apply for judicial review against the decision dated 28 July 2021 of the Torture Claims Appeal Board (“the Board”). The Board had dismissed his appeal against the decision dated 30 November 2018 of the Director of Immigration (“the Director”) which in turn had rejected the applicant’s non-refoulement claim having regard to BOR 3 risk[2] , persecution risk[3] and BOR 2[4] risk grounds under the Unified Screening Mechanism[5] .

Background

2.  The applicant is a national of Bangladesh born in 1980. He was arrested by the police in November 2011 for illegal entry to Hong Kong. He made a torture claim to the Director in December 2011, which was rejected by the Director and not the subject of the current proceedings. The applicant further made a non-refoulement claim in May 2013. His claim was made on the basis that if he returned to Bangladesh, he would be harmed or killed by his enemies from the Awami League (“AL”) due to his affiliation with the Bangladesh Nationalist Party (“BNP”), and that he would be arrested for criminal charges which were falsely laid against him. He also feared that he would be pursued by creditors and subjected to legal proceedings for failing to repay his debts. Details of the applicant’s background, the basis of his claim and the arguments advanced before the Board as well as the Board’s reasons for rejecting his appeal have all been set out in the Board’s decision[6] : see [1]-[3] of the Form CALL-1. After considering the documents filed by the applicant and the oral submissions made by the applicant made in support of the application for leave to apply for judicial review, the Judge dismissed the application for reasons stated at [4] – [8] of the Form CALL-1.  We shall not repeat them here.

Appeal to this Court

3.  On 22 January 2026, the applicant filed his Notice of Appeal against the Judge’s decision, in which he stated that he disagreed with the Board’s decision and that his case had not been properly investigated or fairly determined.

4.  The applicant lodged written submissions in which he made general assertions that the Director failed to give proper weight to the presence of state acquiescence, that the Board placed too much weight on country of origin information instead of the applicant’s personal background and experience, and that the Board made findings which should have resulted in the appeal being allowed. The applicant did not provide any particulars of how these assertions related to the facts and circumstances of his own case. Nor did the applicant identify any errors of the Judge in dismissing his application for leave to apply for judicial review.

5.  At the hearing, the applicant stated that he was suffering from heart disease and had to go to a medical appointment every two months, and that he could not go back to Bangladesh as he would not be able to receive treatment there. He sought to rely on three documents from the Hospital Authority. The first showed that he went to the hospital on 13 January 2026 for a medical appointment. The second showed that he had a cardiology appointment scheduled for 5th May 2026. The third showed that he was to do a blood test seven days prior to the May 2026 appointment.

Discussion

6.  In assessing the merits of the appeal, we 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’s decision, 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.

7.  In the present case, the Board determined that the applicant’s claims were not credible due to inconsistencies in his evidence, lack of corroborative evidence, and implausibility and illogicality in material aspects of his accounts. While the Board accepted some basic background facts of the applicant, it rejected the applicant’s claims of being a member of the BNP, his alleged enmity with the AL, the alleged politically-motivated attacks and the false cases laid against him. The Board also found his accounts of financial loans and disputes to be inconsistent and unsubstantiated. The Board concluded that the centrepiece of the applicant’s story could not stand. The Board further found, the basis of the available country of origin information, that there was some degree of state protection available, and that in any event, internal relocation could reduce or even negate the applicant’s perceived risks of being killed or subject to ill-treatment. All of these were matters for the assessment of the Board. The findings made by the Board were open to it based on the evidence, and for the reasons it gave.

8.  Given that the Board rejected the centrepiece of the applicant’s story, there is no factual basis to support the applicant’s claim that he faces the risk of harm if he were to be refouled. However, the applicant’s arguments as advanced on appeal do not engage with the Board’s reasons for making its findings, and do not show any basis for challenging the findings.

9.  As regards the applicant’s reliance on his heart condition and the need for bi-monthly medical visits, we note that a similar argument was advanced before the Judge, who observed that the applicant had not previously relied on any health issue as a basis for his claim under articles 2 or 3 of the Hong Kong Bill of Rights; he had mentioned his health but merely as background. The Judge rightly noted that an application for judicial review is not an avenue for an applicant to lodge a non-refoulement claim based on a new basis of risk, even though it may arguably be associated with his rights under articles 2 and 3 of the Hong Kong Bill of Rights. The court’s function is to review the legality of an administrative decision already made, rather than to assess a non-refoulement claim on fresh grounds. The Judge observed that as there had been no prior assessment of the applicant’s health issue and its impact on his fundamental rights, it would not be appropriate for him to express a view on it. He considered that the Director and the Board could not be said to have erred in failing to flag up the applicant’s health issue as a distinct issue requiring assessment under the joint endeavour principle. We agree with the Judge’s observations and his conclusion that it is not open to the applicant to rely on his health as a ground to challenge the Board’s decision.

10.  We  therefore decline to admit the applicant’s three documents, handed up at the hearing of the appeal, as new evidence in this appeal. It is trite that if they were to be admitted, the three conditions in Ladd v Marshall [1954] 1 WLR 1489 need to be satisfied, namely, that (1) the new evidence could not have been obtained at the hearing below with reasonable diligence, (2) the new evidence would significantly influence the outcome of the case if believed, and (3) the new evidence must be apparently credible, though not necessarily incontrovertible. Since the applicant cannot rely on his health condition to challenge the Board’s decision, admission of the three documents would not influence the outcome of the appeal.

11.  The applicant has not identified (or even alleged) any error in the decision of the Judge, or any viable ground of appeal against the Judge’s decision. We are satisfied that the Judge gave proper and adequate reasons for his conclusion that the intended judicial review is not reasonably arguable.

12.  The applicant’s appeal is accordingly dismissed.

[1] [2026] HKCFI 173

[2] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the 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.

[4] This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5]  Which was assessed on applicable grounds other the torture risk ground, referring to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115. The torture risk ground was previously assessed and rejected by the Director of Immigration in a decision dated 11 May 2012. The applicant subsequently petitioned against the decision to the Chief Executive, which petition was dismissed on 20 June 2012. 

[6] https://legalref.judiciary.hk/doc/ judg/html/vetted/other/en/ 2021/HCAL001192_2021_files/ the_Board's_Decision.pdf