RE SALA UDDIN

CACV 317/2024, [2025] HKCA 28

On appeal from [2024] HKCFI 1869

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 317 OF 2024

(ON APPEAL FROM HCAL 1690 OF 2019)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”)  given on 29 July 2024 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 17 June 2019 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 29 November 2018 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong as a visitor on 25 May 2013, but he overstayed and was arrested by the police on 7 June 2013. He lodged a torture claim on 10 June 2013, which was rejected by the Director on 29 November 2013.  He did not appeal to the Board against this decision.

3.  Thereafter, the applicant lodged a non-refoulement claim by way of a written representation on 5 December 2013, which was assessed on all applicable grounds other than the torture risk[1].

4.  The applicant’s claim was based on a fear of being harmed or killed by members of the Zillur Family.  The details of the applicant’s claim have been summarised by the Judge at [4] to [11] of the Judge’s decision (“the CALL-1 Form”)[2].  

5.  By a Notice of Decision dated 29 November 2018 (i.e. the Director’s Decision), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[3], the BOR 3 risk[4] and the persecution risk[5].

6.  The applicant appealed against the Director’s Decision to the Board, for which an oral hearing was held on 15 March 2019.  The Board found, inter alia, that although the applicant was in breach of his bail conditions (which were imposed on him subsequent to his arrest for his involvement in a murder case), there was nothing to suggest that the legal process was unfair, or that the applicant would face “persecution rather than prosecution for a serious criminal offence” (see [80] of the Board’s Decision).  Morever, the Board found that members of the Zillur Family have never caused any harm to the applicant or members of his family.  Thus, the Applicant failed to make out the requirements for non-refoulement protection under the BOR 2, BOR 3 and persecution risks, and accordingly, his appeal was dismissed by the Board’s Decision.

The Judge’s decision

7.  The applicant filed a Form 86 on 19 June 2019 seeking to judicially review the Board’s Decision, without setting out any grounds for review.  In his supporting affirmation filed on the same day, the applicant merely exhibited copies of the hearing bundle for the hearing before the Board, and the Board’s Decision itself.

8.  After summarising the facts and background of the case and giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [20] to [25] of the CALL-1 Form:  

“20. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

21. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

22. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13.(1)  …Assessment of evidence and COI 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.’

23. For the reasons given by the Board above, the Board found that the applicant had failed to establish that he had well-founded fear that there will be real risk he will be subjected to any of the applicable risks if he returns to Bangladesh. Having considered the reasons given by the Board in support of its conclusion, I find that the Board was entitled to form its views, based upon the evidence before it. The applicant has failed to raise any valid reason to challenge the Board’s Decision.

24. In the circumstances, I find that the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

25.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.”

Grounds for appeal

9.  In the Notice of Appeal filed on 5 August 2024, the applicant merely stated that he disagreed with the Judge’s decision, and that if refouled to Bangladesh, his life would be in danger as his enemies are still intending to find and kill him.

10.  In his written submissions lodged on 7 November 2024, the applicant repeated the dangers he may face if he was refouled to Bangladesh.  He also contended, inter alia, that the Judge erred by “not having applied the principle of irrationality” and that the Judge also failed to apply “the principle of procedural unfairness” when determining his application.

11.  We heard the appeal on 5 December 2024.  The applicant appeared at the hearing. The applicant, other than repeating that there is a real risk to his life or wellbeing should he return to Bangladesh and that he would return once it is safe for him to do so, had nothing else to add to the matters already stated in his Notice of Appeal and written submissions.

Discussion

12.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

13.  In the application in the court below, the applicant provided no particulars as to any respects in which the Board was unreasonable or unfair in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

14.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.

15.  The applicant has in the Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has failed to do so.

16.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.