Rubel Sheikh v. Torture Claims Appeal Board

CACV 8/2025, [2025] HKCA 493

On Appeal From [2025] HKCFI 136

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 8 OF 2025

(ON APPEAL FROM HCAL NO 2159 OF 2019)

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J U D G M E N T

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

1.This is the Applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 3 January 2025 (“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 26 July 2019, whereby the Board dismissed the Applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 26 February 2016 and 10 February 2017.

BACKGROUND

2.The Applicant is a national of Bangladesh. He claimed that he entered Hong Kong illegally on 21 April 2014, and was arrested by the police on the same date. On 24 April 2014, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by members of the Awami League (“AL”) because he supported their political rival, the Bangladesh Nationalist Party (“BNP”), and refused to join AL. Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form.

3.By a Notice of Decision dated 26 February 2016 and a Notice of Further Decision dated 10 February 2017 (“the Director’s Decisions”), the Director dismissed the Applicant’s non-refoulement claim with reference to all applicable risks: BOR 3 risk[1], persecution risk[2], risk of torture[3], and BOR 2 risk[4].

4.The Applicant appealed the Director’s Decisions to the Board. On 26 July 2019, the Board dismissed the Applicant’s appeal, and affirmed the Director’s Decisions (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §8 of the CALL-1 Form, as follows:

“In its decision the Board found no reliable evidence of any real intention of those local AL supporters to seriously harm or kill the Applicant other than to harass and intimidate him as common between supporters of rival political parties in Bangladesh, nor is there any political reason for them to specifically target him given that he was just an ordinary BNP supporter without any official post in the party, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Bangladesh as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.”

THE JUDGE’S DECISION

5.On 29 July 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Director’s Decisions and the Board’s Decision. No ground for seeking relief was given in the Form 86. In his supporting affirmation, the Applicant merely stated that the Director’s Decisions and the Board’s Decision were unreasonable, in that they failed to consider all the matters raised in his claim. Since the Director’s Decisions had been overtaken by the Board’s Decision, the Judge was correct to focus on the Board’s Decision as the subject matter of the application.

6.On 3 January 2025, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:

“[9] …in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

[10] As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh…

[11] In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, there is simply no justification to afford him with non-refoulement protection in Hong Kong…

[12] In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

[13] For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.”

THIS APPEAL

7.In his Notice of Appeal filed on 7 January 2025, the Applicant stated the following:

“[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.” [sic]

8.The Applicant has failed to lodge written submissions in support of his appeal in accordance with the directions given by the Registrar of Civil Appeals on 3 April 2025. Accordingly, he is deemed to have waived the right to have an oral hearing of his appeal and elected to have his appeal disposed of on paper. Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.

DISCUSSION

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

10.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.

11.The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order.

12.The Applicant’s appeal has no merit, and is dismissed.

The Applicant, acting in person