Re Shahinur Alam

CACV 414/2024, [2025] HKCA 73

On Appeal From [2024] HKCFI 2400

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 414 OF 2024

(ON APPEAL FROM HCAL NO. 1905 OF 2019)

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J U D G M E N T

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

1)  The appeal

1.This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Judge”)  of 20 September 2024 in which he refused to grant leave to him to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”)  of 20 June 2019 (“the Board’s Decision”).

2)  Background

2.The applicant is a national of Bangladesh. He arrived in Hong Kong from Dhaka Bangladesh on the strength of his passport on 2 March 2006 but he overstayed after 17 March 2006. On 26 September 2006 the applicant was arrested. On 3 October 2006 the applicant lodged a torture claim, and it was rejected on 19 April 2013 by the Director of Immigration (“the Director”). The appeal against such rejection was dismissed on 31 May 2013[1].

3.The applicant then lodged a non-refoulement claim that covered BOR 3 risk, BOR 2 risk and persecution risk (except for torture risk)  on 21 June 2013 which was dismissed on 14 August 2018[2].

4.The basis of the applicant’s claim is that if he returns he would be harmed or killed by Mamum and the Bangladesh Nationalist Party (“BNP”)  because the applicant assaulted Mamum[3].

5.The background facts have been summarised in the decision of the Judge at [4] to [9].

3)  The Director’s Decisions

6.The Director decided against the applicant’s claim based on torture risk on 19 April 2013 (and his appeal was unsuccessful). The Director decided against the applicant’s non-refoulement claim (except for torture risk)  on 14 August 2018.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk (“BOR 3”), Bill of Rights Article 2 (right to life)  risk (“BOR 2”), as well as other statutory and convention rights against persecution except torture[4].

4)  The Board’s Decision

7.The applicant appealed against the Director’s decision of 14 August 2018 to the Board[5].  After a hearing held on 21 December 2018, the Board dismissed the applicant’s appeal on 20 June 2019 (that is, the Board’s Decision).

8.The Board’s findings are summarised in the decision of the Judge at [13]-[17].

5)  Decision of the Judge

9.The Judge held that the applicant had no valid ground to challenge the Board’s Decision. The applicant was not entitled to free legal representation throughout the proceedings and he was not entitled to interpretation all the time. The applicant did not ask the Board to adjourn the proceedings or for more time but proceeded with them. The law does not require the Board to notify the applicant of its decision by phone. There is no evidence to support the applicant’s allegation that the Board had speculated that it was safe for him to return. The Board could rely on country of origin information and did not need to visit the applicant’s country[6].

6)  Grounds of appeal

10.The applicant in the notice of appeal stated bare assertions without particulars that consisted of the following:

‘ 1. Failure to consider the fact that I had raised into my claim that why I would not return to my home country because of fear for my life. My enemies still so powerful and I will face the risk upon refoulement.

2. Failure to materialize my fear under BOR 2 and BOR 3 risk.’

11.The applicant’s written submission can be summarised as follows:

i.  the assessors’ view was that his claim was not established because his fear was too low but in fact the applicant’s life is still in danger;

ii.  the Board and/or the Director failed to take account relevant considerations or took into account irrelevant considerations;

iii.  the Judge did not follow a high standard of fairness;

iv.  country of origin information clearly showed that no protection to the applicant would be provided;

v.  the decision maker did not observe the applicant’s fear well;

vi.  the applicant’s claim is not a private matter;

vii.  the Court did not focus on the applicant’s fear;

viii.  the Judge just confirmed the Board’s Decision;

ix.  the applicant’s matter is a political matter and not a private dispute.

12.At the hearing of the appeal, the applicant was absent. We therefore indicated that we would consider the appeal on the papers.

7)  Our view

13.We are of the view that the applicant’s appeal is without merit.  His grounds of appeal and written submission consist of bare allegations without particulars or specifics.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave to appeal for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong : see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

14.It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in assessing the Board’s Decision.  None of the arguments raised by the applicant shows the Judge made any error of law. 

15.We see no basis to disturb the Judge’s decision.  Accordingly, the appeal is dismissed.

The Applicant acting in person did not appear