Ahmed Sahed v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 66/2025, [2025] HKCA 672

On Appeal from [2025] HKCFI 348

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 66 OF 2025

(ON APPEAL FROM HCAL NO 2353 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):

Introduction

1.This is an appeal against the decision of Deputy High Court Judge K. W. Lung (“Judge”) on 11 February 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 19 July 2019. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 27 December 2018 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Bangladesh born in 1995. He entered Hong Kong illegally from Mainland China on 18 July 2015 and surrendered to the Immigration Department on 20 July 2015. On 24 March 2016, he raised a non-refoulement claim by way of written signification and his non-refoulement claim form dated 3 December 2018 was subsequently submitted to the Immigration Department. The applicant’s claim was made on the basis that if he returned to Bangladesh, the members of an opposing political party, Awami League (“AL”), would harm or kill him due to his affiliation with the Bangladesh Nationalist Party (“BNP”) as a Joint Secretary of BNP’s student committee. The factual background of the applicant’s claim was set out at [3] to [10] of the Board’s decision.

3.By notice of decision dated 27 December 2018, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against him. Those grounds were BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

4.The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 6 June 2019, during which the applicant gave evidence and answered questions from the Board. The Board rejected the applicant’s account as not credible and untruthful, because it did not accept that the applicant was an active political leader holding a post of Joint Secretary in a BNP student committee, that the applicant had been physically assaulted by AL members, and that AL had adversely targeted the applicant and had influenced the local police to harass him.

5.The Board proceeded to consider the risk of harm faced by the applicant if he was refouled to Bangladesh. It found that there was in fact no real risk of harm if the applicant returned to Bangladesh, because there was no evidence that the risk of harm reached the requisite level of severity, that the applicant had been adversely targeted by AL or the local police, and that he was an active member of BNP’s student wing targeted by AL. Upon consideration of various relevant country of origin information (“COI”) in favour of and detrimental to the applicant’s case, the Board further found that reasonable state protection would be available to the applicant and that internal relocation to other cities, such as Dhaka and Chittagong, would be viable and not unduly harsh for the applicant.

6.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 19 July 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decision in the court below

7.On 15 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. He did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation. In the latter, he annexed the Board’s decision and the hearing bundle prepared for the purpose of the appeal hearing before the Board.

8.The Judge considered the application on the basis of the documents alone as the applicant was absent at the oral hearing scheduled on 30 December 2024. On 11 February 2025, the Judge issued his decision, refusing to grant leave to apply for judicial review. The reasons were set out in [15] to [21] of the Judgment as follows:

“ 15. 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).

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

17. 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.’

18. The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded.

19. There is no valid ground from the applicant to challenge the Board’s Decision.

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

9.On 11 February 2025, the applicant filed his Notice of Appeal against the Judge’s decision. His stated grounds of appeal were that the Director, the Board and the Judge failed to take into account or give sufficient weight to an unspecified argument in reaching their decisions, that the Director failed to appreciate or give proper weight to the presence of state acquiescence in the applicant’s case, that the Board failed to make sufficient enquiry, that the Board failed to give the applicant sufficient opportunity to arrange relevant evidence, and that the Director included his preconceived conclusion despite referring to relevant COI.

10.The applicant has lodged written submissions in which he recited the legal principles of standard of fairness and procedural fairness without indicating how they applied to his own case.

11.At the oral hearing, the applicant said that he was not able to return to his country as the situation there was “very bad”; he said that there was no fixed or elected government at this point in time.

Discussion

12.In assessing the merits of the appeal, we 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 an application for 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.

13.In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the applicant’s claim was rejected as not credible and untruthful, his claim of risk of harm did not reach the requisite level of severity, he was not found to be a person of high position in the BNP student committee, he was not a person of adverse interest to AL or the authorities, reasonable state protection would be available and internal relocation to Dhaka and Chittagong would be viable to him. These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. The applicant has failed to show any reasonably arguable ground for saying that the Board’s decision should be impugned due to public law errors. As for the general grounds advanced in the notice of appeal and the written submissions, they consist of mere general and bald assertions regarding the decisions of the Director, the Board and the Judge without any particulars. They do not constitute viable grounds of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20]. The applicant’s oral submissions raised no additional points to support a ground of appeal.

14.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. We are not satisfied that there is any error in the Judge’s decision.

15.The applicant’s appeal is accordingly dismissed.

The Applicant appeared in person