SHEIKH MAHASIN v. TORTURE CLAIMS APPEAL BOARD

CACV 279/2024, [2025] HKCA 570

On appeal from [2024] HKCFI 1715

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 279 OF 2024

(ON APPEAL FROM HCAL NO 1184 OF 2020)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 2 July 2024, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on 11 July 2024.

2.  The applicant is a national of Bangladesh. On 15 February 2015, he entered Hong Kong illegally and was arrested by the police. He was referred to the Immigration Department on 19 February 2015 and lodged his non-refoulement claim on 26 February 2015. His claim was made on the basis that, if refouled, he would be harmed or killed by a leader of Awami League (“AL”) and his men because the applicant supported the Bangladesh Nationalist Party (“BNP”).

The decision of the Director

3.  By a Notice of Decision dated 19 December 2018, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

4.  In respect of the alleged intensity and frequency of the threats and assault, the alleged nature of injury as well as the treatment the applicant allegedly received, the Director found that the ill-treatment inflicted upon the applicant by the local AL members had not attained the requisite minimum level of severity. Taking into account the long lapse of time since the last attack and the fact that the applicant had already stopped taking part in any BNP activities after the attack, the Board assessed that the claimed risk of harm, even if it once existed, would have diminished. In addition, the Director also assessed that state protection and internal relocation options are available to the applicant in his home country, which further lower or negate any perceived risk.

The decision of the Board

5.  The applicant filed an appeal against the Director’s decision with the Board on 28 December 2018 and attended the hearing before the Board on 7 November 2019. As the applicant was only attacked once for one minute back in 2014 which caused minor injuries and he only received verbal threats on other occasions, the Board was not satisfied there is real risk that the applicant would be seriously harmed if he is refouled to Bangladesh. Furthermore, the Board held that state protection would be available to the applicant in Bangladesh and it would not be unreasonable for the applicant to relocate to another area in Bangladesh to avoid or minimise the perceived risks. Therefore, the Board decided that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds and dismissed the appeal on 8 May 2020.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 15 June 2020 to seek leave to apply for judicial review against the decision of the Board. He only stated in his supporting affirmation that he does not agree with the Board’s decision, without putting forward any specific grounds for his intended challenge.

The judge’s decision

7.  The applicant attended the hearing before DHCJ Bruno Chan on 18 June 2024. The judge found that the applicant did not have any reasonably arguable basis to challenge the decision of the Board, as he has not identified any error of law, irrationality or procedural unfairness in the process before the Board or in the Board’s decision. The judge was not satisfied that the applicant has any prospect of success in his proposed judicial review and dismissed the leave application on 2 July 2024.

Grounds of appeal

8.  In the statement attached to his Notice of Appeal, the applicant reiterated the problems he faced in his home country without putting forward any specific grounds against the judge’s decision.

9.  The applicant has submitted a written consent to dispose of the appeal on paper without an oral hearing.

Legal principles

10.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

11.  The role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board. Assessment of evidence and Country of Origin Information 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.

12.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

13.  The applicant failed to identify any particular errors of law, failure to take account of relevant matters already placed before the court or any particular mistake in the judge’s decision.

14.  For the above reasons, the appeal is devoid of merits so we dismiss the appeal accordingly.