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

CACV 18/2026, [2026] HKCA 410

On Appeal From [2026] HKCFI 60

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 18 OF 2026

(ON APPEAL FROM HCAL NO 130 OF 2021)

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J U D G M E N T

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Hon Eugene Fung J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the order of Deputy High Court Judge  (Non-Refoulement Claims) Vincent Lung (“the Judge”) dated 6 January 2026 ([2026] HKCFI 60) (“the Leave Decision”) refusing his application for leave to apply for judicial review (and also extension of time for leave to apply for judicial review if necessary) (“the Leave Application”) against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 3 November 2020 (“the Board’s Decision”), whereby the Board dismissed his appeal/petition against the decision of the Director of Immigration (“the Director”) dated 18 March 2020, refusing his non-refoulement claim other than torture risk.  The ground under torture risk was previously dismissed by the Director on 21 May 2013.

2.  The applicant’s background, the basis of his claim and arguments advanced before the Board as well as the Board’s reasons for rejecting his appeal are all set out in the Board’s Decision: see [1]-[4], [9]‑[10] of the Leave Decision.

3.  The applicant is a national of Bangladesh.  He claimed to have arrived in Hong Kong in January 1995 using his real name, and overstayed.  He was repatriated in December 1999.  He returned to Hong Kong in early 2000 under an assumed name.  He was arrested in May 2002, and was deported in August 2002.  He left Bangladesh again in around September or October 2003 under another assumed name.  He was arrested in September 2008.  He lodged a torture claim and it was rejected on 21 May 2013.  In June 2013, he appealed against the rejection of his torture claim and the appeal was dismissed on 23 July 2013.  He made a non-refoulement claim other than torture risk on 13 July 2013.  The basis of his claim is that if he were to return to Bangladesh, he will be harmed or killed by supporters of the Bangladesh Nationalist Party, as he was previously a supporter of the Jatiya party.  The applicant also fears that he will be harmed or killed by his paternal cousin and his followers who were from the Awami League. 

4.  The Judge sets out the grounds advanced by the applicant in support of the Leave Application and his reasons for refusing the Leave Application: see [8]-[12] of the Leave Decision.  We will not repeat the details herein.

5.  By the Notice of Appeal filed on 9 January 2026, the applicant stated:

“… the grounds of this appeal are that the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

6.  This appeal was scheduled to be heard on 3 March 2026.  As the applicant did not lodge any written submissions within the time specified as previously directed, the scheduled hearing of his appeal was vacated pursuant to the directions of the Court.  Nonetheless, on 27 February 2026, the applicant filed a skeleton submission in which (1) some general principles were referred to and (2) the applicant asserted that the Board failed consider “matters such as the country conditions of the Applicant’s country of origin”.  We shall accordingly determine the appeal on the basis of the available documents and materials. 

7.  The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

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

9.  In light of the above, it is thus incumbent on the applicant to point out the errors in the Leave Decision with sufficient particulars.

10.  However, nowhere in his Notice of Appeal has the applicant identified any error committed by the Judge with specific particulars.  His assertions are all general, bare and vague allegations unsupported by particulars or evidence.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  The Court will not usurp the role of the Board.  Assessment of evidence, country of origin information materials, 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.  No such error was demonstrated by the applicant.  Clearly, his assertions do not constitute viable grounds of appeal.  We see no basis to interfere with the Leave Decision.

11.  For the above reasons, the applicant’s appeal against the Leave Decision has no merit and is dismissed.