RE KHAN BACCHO

CACV 376/2024, [2025] HKCA 37

On Appeal From [2024] HKCFI 2321

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 376 OF 2024

(ON APPEAL FROM HCAL NO 1819 OF 2019)

________________________

_____________________

_______________

J U D G M E N T

_______________

Hon Cheng J (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 16 September 2024 (“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 3 June 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 15 June 2018.

BACKGROUND

2.  The Applicant is a national of Bangladesh. He last arrived in Hong Kong as a visitor on 12 June 2015. He overstayed illegally. On 29 June 2015, he surrendered himself to the Immigration Department. On 26 November 2015, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by a member (Usman Goni) of the Awami League Party (“AL”) and his supporters because the Applicant supported another political party, the Jamaat-e-Islami Party. Details of the Applicant’s claim have been summarised by the Judge at §§3-6 of the judgment dated 16 September 2024 (“the Judgment”).

3.  By a Notice of Decision dated 15 June 2018 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: BOR 2 risk[1], BOR 3 risk[2], persecution risk[3] and risk of torture[4].

4.  The Applicant appealed the Director’s Decision to the Board. On 3 June 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§11-12 of the Judgment, as follows:

“[11] The Board found that the action by the AL cadres and the police during the 5 May 2013 rally was targeted at the crowd rather than at the applicant personally [45]. The Board was also of the view that the matter was merely a personal grudge because no one from AL had ever harassed the applicant apart from the AL leader who had threatened him once [46]-[47]. Regarding the claimed false implication, the Board considered it a matter to be decided by the Bangladeshi police [48].

[12] Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [6]-[15], [49]-[58]. Furthermore, internal relocation would also be a viable option for the applicant [59]-[64].”

THE JUDGE’S DECISION

5.  On 2 July 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. In a statement of grounds attached to the Form 86 and in his supporting affirmation, he raised various complaints against the Board. The Judge summarised the Applicant’s complaints at §15 of the Judgment, as follows:

“(1) The Board had unlawfully fettered its discretion by refusing his appeal.

(2) The adjudicator acted in a procedurally unfair manner. He was not given an opportunity or invited to make his submissions.

(3) The Board’s decisions to refuse his appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness. The Board had relied on the source of news, which is not officially recognized or it is simply hearsay. It has also relied on some outdated cases. All these result in its groundless speculation that if is safe for him to return to his country.

(4) The Board failed to meet the greater care and duty owed to a self-represented claimant.”

6.  On 16 September 2024, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[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…

[17] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the [Applicant] said that he understood the Board’s Decision. However, he complained that there is no guarantee that he will be safe if he returns to Bangladesh.

…

[19] The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. On the story of the [Applicant] before the Director and the Board, the Board’s decisions are by no means unreasonable or irrational.

[20] As to the grounds under paragraph 15, they are the [Applicant’s] personal opinions without any evidence in support. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

‘20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].’

[21] It is only common sense that no government can guarantee absolute safety for its citizens. There is no valid ground from the [Applicant] to challenge the Board’s Decision.

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

THIS APPEAL

7.  In his Notice of Appeal filed on 17 September 2024, the Applicant stated the following grounds of appeal:

“[The Applicant] 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 it 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.”

8.  In his 4-page written submissions lodged on 23 October 2024, the Applicant made some generic submissions on general principles of law relating to the high standards of fairness required in determining non-refoulement claims, but failed to explain how they are applicable to his case.

9.  At the hearing of the present appeal, the Applicant submitted that the court should review the current circumstances in Bangladesh and do justice according to such circumstances. He stated that the political situation was bad and that there was no active law enforcement, and repeated the claim that Usman Goni would kill him if he returned. He said that if the political situation in Bangladesh improved, he would voluntarily return.

10.  After the conclusion of the hearing, on 18^th December 2024, the Applicant filed a Request for Dismissal of Appeal. Given that the hearing had already been held and the Applicant had already made his submissions, we considered that we should nevertheless determine the appeal on its merits.

DISCUSSION

11.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, in an appeal against refusal of leave to apply for judicial review in a non-refoulement case, 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 or Director’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

12.  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. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

13.  The Applicant has failed to identify or show any error in the Judgment, and has failed to raise any viable ground of appeal against the Order. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the Judgment.

14.  The Applicant’s appeal against the Order has no merit and is dismissed.