MELON SHEIKH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 1174/2025, [2026] HKCA 84

On Appeal From [2025] HKCFI 5688

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1174 OF 2025

(ON APPEAL FROM HCAL NO 3441 OF 2019)

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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 Levy (“the Judge”) dated 28 November 2025 (“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 7 November 2019 (“the Board’s Decision”), whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 1 November 2018 rejecting his non-refoulement claim.

2.  The Applicant alleges that, if refouled to Bangladesh, he will be harmed or killed by members of the Awami League (“AL”) because he is a member of AL’s political rival, the Bangladesh Nationalist Party, and he was attacked by members of the AL back in 2011 and 2012[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 referred to by the Judge in the Judge’s decision (see §2 of the Form CALL-1). We do not propose to repeat them here.

3.  The Judge’s reasons for dismissing the Applicant’s leave application are set out at §§4-8 of the Form CALL-1. In gist, the Judge found that the Applicant had not advanced any or any proper grounds for his intended challenge against the Board’s Decision, nor was he able to show any errors of law or procedural unfairness or irrationality in the Board’s Decision.

THIS APPEAL

4.  In his Notice of Appeal filed on 11 December 2025, the Applicant states the following:

“I am disagree with the decision maker authorities. The Respondent’s had unlawfully fettered his discretion by refused my appeal on the grounds that they did not satisfy the requirements. The Respondent’s failed to meet the greater care and duty owed to a self-represented claimants. I do not think my case determined fairly.” [sic]

5.  The Applicant has failed to lodge written submissions in support of his appeal in accordance with the directions given by the Registrar of Civil Appeals on 11 December 2025. Accordingly, he is deemed to have waived the right to have an oral hearing of his appeal and elected to have his appeal disposed of on paper. Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.

DISCUSSION

6.  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)).

7.  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.

8.  The complaints raised in the Applicant’s Notice of Appeal are vague and general, and are directed at the Board’s Decision. They do not constitute any valid grounds of appeal against the Judge’s decision.

9.  Insofar as the Applicant seeks to raise a complaint of unfairness arising from his lack of legal representation in the proceedings before the Board, this would be a new point which was not raised in his application below. He is not entitled to raise it for the first time in the Court of Appeal. In any event, it has no merit. The Applicant was assisted by the Duty Lawyer Service in relation to the assessment of his non-refoulement claim by the Director. It is well-established that a non-refoulement claimant is not entitled to free legal representation at all stages of the assessment of his non-refoulement claim. The Applicant has also failed to show that he was inhibited from advancing any particular point or ground before the Board by reason of the lack of legal assistance.

10.  The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order.

11.  The Applicant’s appeal has no merit, and is dismissed.