SHOPUN AHKUN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 31/2025, [2025] HKCA 817

On Appeal From [2025] HKCFI 113

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 31 OF 2025

(ON APPEAL FROM HCAL NO 2230 OF 2019)

____________

____________

_________________

J U D G M E N T

_________________

Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K. W. Lung (“Judge”) on 8 January 2025[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 24 July 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 24 August 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh born in 1983.  He last arrived in Hong Kong as a visitor on 5 March 2013 and was permitted to stay until 19 March 2013.  He overstayed and was subsequently arrested by the police on 7 June 2013.  The applicant lodged a torture claim by way of a written representation dated 10 June 2013 and later lodged a claim for non-refoulement protection on the remaining applicable grounds by way of submissions dated 8 April 2014.  The applicant’s claim was made on the basis that if he returned to Bangladesh, the members of the Awami League (“AL”) would harm or kill him due to his refusal to be recruited by them and his political affiliation with an opposing political party, the Bangladesh Nationalist Party.  The factual background of the applicant’s claim was set out at [17] to [26] of the Board’s decision.

3.  By notice of decision dated 17 January 2014, the Director assessed the applicant’s claim in relation to torture risk[2] and determined it against him.  He did not lodge any appeal to the Board in this regard and it is not a subject matter of this appeal.

4.  By notice of decision dated 24 August 2018, the Director further assessed the applicant’s claim in relation to all remaining applicable risks, other than torture risk, and determined it against him.  Those grounds are BOR 3 risk,[3] persecution risk,[4] and BOR 2 risk.[5]

5.  The applicant appealed to the Board against the Director’s decision dated 24 August 2018 on the three applicable risks.  An oral hearing was held on 19 December 2018, during which the applicant gave evidence and answered questions from the Board.  At the oral hearing, the Board found that the applicant’s evidence was generally consistent and that, on a balance of probabilities, the applicant’s account of events was credible.

6.  The Board nevertheless found there was in fact no real risk of harm if the applicant returned to Bangladesh, because there was only a low frequency and intensity of threat by AL members, the applicant had proceeded through national border control without interference from the authorities, reasonable state protection would be available to the applicant, and internal relocation to places other than his hometown would be viable.

7.  In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to Bangladesh.  By its written decision dated 24 July 2019, the Board dismissed the applicant’s appeal in respect of BOR 3 risk, persecution risk and BOR 2 risk and confirmed the Director’s decision dated 24 August 2018.

The Judge’s decision in the court below

8.  On 6 August 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision dated 24 July 2019.  He did not specify any ground for judicial review in the Form 86.  In the accompanying affirmation, he simply repeated the basis of his claim for non-refoulement protection and annexed the Board’s decision and the hearing bundle used at the hearing before the Board.

9.  The Judge considered the application on the basis of the documents alone as the applicant did not appear at the oral hearing scheduled on 9 December 2024.  On 8 January 2025, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [16] to [21] of the Judgment as follows:

“ 16. 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).

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

18. 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.’

19. The reasons given under paragraph 15 do not assist the applicant. The adjudicator may rely on the COI to understand his situation in his country. The Court of Appeal has held that he is not entitled to free legal assistance all the time throughout the proceedings[2].

20. There is no reason that the Court should interfere with the Board’s finding of the facts.

21. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.”

Appeal to this Court

10.  On 22 January 2025, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were, essentially, that his problem was not scrutinized properly, that his enemies were still looking for him, and that he would be killed by his enemies if he returned to his home country. 

11.  The applicant has lodged written submissions in which he states that the Judge was wrong not to find the decisions of the Director and the Board to be irrational and procedurally unfair, that the Director and the Board failed to give reasons justifying their decisions, that the Judge did not analyse his claim properly, that the Board failed to give him sufficient opportunity to arrange relevant evidence, that the Board relied on sources of news which were not officially recognized, that the Board failed to analyse whether state protection existed, and that the situation underlying his claim for non-refoulement protection still exists if he returns to Bangladesh.

12.  As the applicant did not appear at the scheduled hearing, we shall accordingly determine the appeal on the basis of the available documents and materials.

Discussion

13.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, 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.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

14.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because there was a low frequency and intensity of threat by AL members, the applicant proceeded through national border control without interference from the authorities, reasonable state protection would be available to the applicant, and internal relocation to other places other than his hometown would be viable.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.  Contrary to the applicant’s submissions, the Board had given reasons to justify its decision at [27] to [40] and it had analyzed the issue of state protection at [32] to [34].  As for the applicant’s other submissions, the applicant has not provided any particulars regarding what relevant evidence he wished to adduce but was not allowed by the Board or what sources of news were not officially recognized.  The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision.

15.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  The applicant only submits bare assertions as to the Judge’s decision being wrong and that the Judge did not analyse his claim properly.  We are not satisfied that there is any error in the Judge’s decision.

16.  The applicant’s appeal is accordingly dismissed.