Re Khan Mohammad Babu

CACV 392/2023, [2025] HKCA 847

On appeal from [2023] HKCFI 2909

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 392 OF 2023

(ON APPEAL FROM HCAL 1346/2019)

____________________

____________________

___________________

J U D G M E N T

___________________

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

1.This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 23 November 2023 refusing to grant leave for the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 3 May 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 22 June 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 2 February 2015, and was arrested by the police on 5 February 2015.  On 7 February 2015, he lodged a non-refoulement claim by written representations.  

3.The applicant’s claim was based on a fear of being harmed or killed by members of the Awami League due to political differences.  The details of the applicant’s claim have been summarised by the Judge at [4] to [5] of the Judge’s decision (“the CALL-1 Form”)[1].   

4.By a Notice of Decision dated 22 June 2018 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk^[2], the BOR 3 risk^[3], the persecution risk^[4] and the torture risk^[5].

5.The applicant appealed to the Board against the Director’s Decision.  After an oral hearing on 4 March 2019, the Board dismissed the appeal by the Board’s Decision, which covered all applicable grounds for non-refoulement protection.  The Board found that the applicant was not a witness of truth and gave inconsistent and incredible evidence on material events, on which his claim was based.  In any event, the Board was satisfied that adequate state protection and suitable options of internal relocation were available to the applicant.  

The Judge’s decision

6.The applicant filed a Form 86 on 20 May 2019, seeking to judicially review the Board’s Decision.  The applicant’s proposed grounds for review were, as summarised by the Judge (CALL-1 Form, [12]):

“(1) The Board had unlawfully fettered his discretion by refusing his appeal on the grounds that they did not satisfy the requirement.

(2) The adjudicator acted in a procedurally unfair manner in dealing with his appeal: the hearing bundle was given to him a few days before the hearing and he did not have interpreter’s service and he was confused although he had answered all questions put to him; the Board’s Decision was not notified to him by phone as he requested; the Board relied on the source of news not officially recognized and outdated COI; there was no screening; the adjudicator had not been to his country to understand his situation.

(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.

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

7.After summarising the facts and background of the case, giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant the applicant leave to apply for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [13] to [21] of the CALL-1 Form:

“13.   The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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).

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

15.  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.’

16.  The grounds in paragraph 12 are general assertions or propositions of the law. 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].”

17.  The Board, for the reasons given above, did not believe his evidence on the facts of the applicant’s case.

18.  As to the grounds in support of his application, grounds (1), (3) and (4) are his bare assertions or his opinion without any evidence in support. As to ground (2), he did not complain to the Board that he was not given enough time to prepare his case. Also, he was able to answer all the questions. The fact that he did not have the interpretation service is not a valid ground for his application as the Court of Appeal had pointed out that he is not entitled to this service at all times throughout the proceedings. It is unnecessary for the adjudicator to go to his country to understand the situations there as she could rely upon the COI. All these grounds are not valid to challenge the Board’s Decision.

19.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

20.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

21.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

Grounds for appeal

8.In the Notice of Appeal filed on 30 November 2023, the applicant merely stated that the “High Court did not consider [his] JR” and that the Board’s Decision is “full of wrong”.

9.In his written submissions lodged on 14 December 2023, the applicant merely repeated the factual background to his claim and complained that he had not been afforded an oral hearing for the leave application before the Judge.

10.The applicant did not request an oral hearing of the appeal and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

11.The applicant has in the Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

12.In his application in the court below, the applicant provided no particulars as to any respects in which the Board had acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

13.As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

14.The applicant’s complaint of a lack of oral hearing before the Judge is unmeritorious, as one was in fact fixed for him, but the applicant was absent without prior notice to the Court (CALL-1 Form, [2]).

15.There is therefore no merit in the appeal and we dismiss the appeal accordingly.