HOSSAIN MD ISMAYL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 539/2026, [2026] HKCA 1278

On Appeal From [2026] HKCFI 2556

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 539 OF 2026

(ON APPEAL FROM HCAL NO 1493 OF 2025)

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J U D G M E N T

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

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 15 May 2026 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 26 June 2025 (“the Board’s Decision”), whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 7 April 2025.

2.  The Applicant alleges that, if refouled to Bangladesh, he will be harmed or killed by two leaders of Bangladesh Nationalist Party and their subordinates in his hometown because of his refusal to let them take over his 2 shops[1]. The Applicant’s background, the basis of his claim, the findings of the Board and its reasons for dismissing the Applicant’s appeal against the Director’s decision have been set out in detail in the Board’s Decision, and summarised by the Judge in his decision (see §§3, 4, 7 and 8 of the CALL-1 Form).  We do not propose to repeat them here.

3.  The Judge’s reasons for dismissing the Applicant’s leave application are set out at §§12-16 of the CALL-1 Form.  In gist, the Judge held that the Applicant had failed to provide any valid grounds to challenge the Board’s Decision, or show that his intended judicial review had any realistic prospect of success.

THIS APPEAL

4.  In his Notice of Appeal filed on 27 May 2026, the Applicant puts forward the following grounds of appeal:

“1. The Applicant submits that the Director, the Adjudicator, and the Court have failed to take such argument into account or that the Director has failed to give sufficient weight to such argument before reaching the Decision.

2. The Director’s Decision, it was evident that the director had failed to appreciate or give the proper importance or weight to the presence of state Acquiescence in the Applicant’s case. This has indeed led to an unfair outcome of rejecting the Applicant’s non-refoulement claim.

3. The Adjudicator failed to make a sufficient inquiry before finalizing the determination. The Adjudicator stated that the applicant had failed to provide any credible evidence to prove the material elements of his claim.

4. The adjudicator has failed to give a sufficient chance to the applicant to arrange relevant evidence for his non-refoulement claim as well as his appeal.

5.  Surprisingly, the director, in his Decision, while referring to relevant COIs. Kept including meaning which suited his pre-conceived conclusion.  This was a clear case of unfair attitude shown by the Director, which in itself is enough to render his Decision void.” [sic]

5.  In his written submissions lodged on 22 June 2026, the Applicant sets out some general principles of law relating to non-refoulement claims, but fails to explain how they are relevant or applicable to his case. 

6.  Attached to his written submissions are the following documents:

(1)  a document written in a foreign language with an English translation (marked “B” by the Applicant at the hearing of the appeal), which appears to show that on 16 May 2024, the Applicant and his father filed a criminal complaint in a magistrate court in Bangladesh against a person or persons;

(2)  another document written in a foreign language with an English translation (marked “A” by the Applicant at the hearing of the appeal), which appears to show that a summons was issued out of a magistrate court in Bangladesh against the Applicant on 6 October 2024;

(3)  three medical certificates dated 2 December 2022, one written in a foreign language (with accompanying English translation) and the other two written mostly in English, which appear to show that the Applicant was medically examined and received treatment as a result of a physical assault; and

(4)  four photos which appear to show that a man’s body was wounded (collectively “the Documents”).

7.  The Applicant did not explain, whether in an affidavit or in his written submissions, the provenance or relevance of the Documents. He also did not make any application for leave to adduce the Documents as new evidence in support of his appeal.

8.  At the hearing of the appeal, the Applicant explained that:

(1)  Document “B” related to a complaint/claim that he filed in the Bangladesh court against his assailant(s) on 16 May 2024 for assault/wounding.

(2)  Document “A” related to a false counter-complaint that his assailant(s) filed against him on 6 October 2024.

(3)  The person shown on the photos referred to at §6(4) above was him, and they showed that he was wounded by his assailants

The Applicant also said that he did not want to return to Bangladesh.

DISCUSSION

9.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

10.  Further, the assessment of evidence, country of origin information, 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: Re Kartini [2019] HKCA 1022, at §13.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

11.  The matters raised in the Applicant’s Notice of Appeal and written submissions are mostly directed at the decisions of the Director and the Board, and consist of general assertions without particulars. They do not constitute valid grounds of appeal against the Judge’s decision.  His assertion that he was not given an opportunity to submit evidence for his appeal before the Board is plainly unjustified.  He testified at the hearing before the Board, and relied on the information and documents that his former legal representative had previously submitted to the Director in support of his non-refoulement claim.  He did not produce any new document at the hearing before the Board.  The Board in dismissing his appeal against the Director’s decision had considered the evidence submitted by him, including his testimony at the hearing (see §§12, 69 and 70 of the Board’s Decision)[2].

12.  The Documents appear to be the same as, or similar to, some of the documents that he had previously submitted to the Director on 12  February 2025 in support of his non-refoulement claim, and were considered by the Board in rendering the Board’s Decision (see §68 of the Board’s Decision).  As earlier mentioned, the assessment of the Applicant’s evidence is a matter primarily within the province of the Director and the Board.  We do not consider the Documents assist the Applicant in the present appeal, and see no valid basis to interfere with the Board’s assessment in the present case. 

13.  The Applicant has failed to raise any viable ground of appeal against the Order.

14.  The Applicant’s appeal has no merits, and is dismissed.