Khan Joynal v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 172/2025, [2025] HKCA 885

On Appeal from [2025] HKCFI 964

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 172 OF 2025

(ON APPEAL FROM HCAL NO 2612 OF 2019)

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BETWEEN

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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 1 April 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 30 August 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 24 July 2018 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Bangladesh born in 1991.  He claimed to have entered Hong Kong illegally from Mainland China on 3 August 2015 and he surrendered to the Immigration Department on 5 August 2015.  The applicant lodged his non-refoulement claim by way of written representation on 31 March 2016 on the basis that he would be harmed or killed by the supporters of Awani League (“AL”)  due to his support for the Bangladesh Nationalist Party (“BNP”).  The factual background of the applicant’s claim was set out at [7] of the Board’s decision.

3.By notice of decision dated 24 July 2018, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against him.  Those grounds are 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 10 January 2019, during which the applicant gave evidence and answered questions from the Board. The Board found the applicant’s claim to be incredible as his answers were evasive, argumentative and inconsistent.  His evidence was inconsistent with his previous statements, inconsistent with credible country of origin information and even defied logic.  Examples of inconsistencies, credibility issues and lack of logic included the description of his flight from Bangladesh which was chronologically inconsistent, his account of the assault on him by AL supporters which on the one hand appeared to be very serious but on the other hand resulted in trivial injuries, the change of his claimed status within the BNP from ordinary member to senior member, the change in his account as to whether and why he had not made a report to the local police, and his illogical account of going to India for safety.  

5.Although the Board rejected the basis of the applicant’s claim, it proceeded to consider the risk of harm faced by him if he was refouled to Bangladesh.  The Board found there was in fact no real risk of harm if the applicant returned to Bangladesh, because the risk of ill treatment was low, the applicant’s family continued to reside in their home village, adequate state protection would be available to the applicant, and internal relocation to Dhaka would be a viable option. 

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 30 August 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 9 September 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.  His ground for judicial review was, essentially, that the Board conducted itself in a procedurally unfair manner.  In the accompanying affirmation, he stated that he lacked legal and language assistance, that the hearing bundle was given to him a few days before the appeal hearing, that the Board relied on unofficial sources of information resulting in groundless speculation that it was safe for the applicant to return to his country, that the Board decided on the issue of BOR2 risk without screening by the Director, and that the Director and the Board should visit the applicant’s home country to understand his claim fairly.

8.The Judge considered the application on the basis of the documents and the submissions of the applicant at the hearing held on 26 February 2025.  On 1 April 2025, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [12] to [16] of the Judgment as follows:

“ 12. 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).

13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, when asked if he considered that the Board’s Decision was wrong, he said he did not think so. He simply asked the Court to review it.

14. 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.’

15. As to the grounds in paragraph 11, the Court of Appeal had held that he was not entitled to free legal advice or interpretation at all stages of the proceedings. It was not necessary to have another screening for BOR 2 risk as the Immigration Department had conducted one for his other applicable risks. The adjudicator can rely on the country of origin information without going to his country to understand his situation. In view of his submissions before the Court, it is obvious that the applicant has no valid ground to challenge the Board’s Decision.

16.  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 3 April 2025, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated ground of appeal was simply that the Judge did not consider his judicial review and the Board did not give a correct decision.   

10.As the applicant did not lodge any skeleton argument, the scheduled hearing of his appeal was vacated pursuant to the directions of the Court.  We shall accordingly determine the appeal on the basis of the available documents and materials.

Discussion

11.In assessing the merits of the appeal, we shall 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 a 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.

12.In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the Board rejected his evidence as incredible and found that in any event the risk of ill treatment was low, the applicant’s family continued to reside in their home village, adequate state protection would be available to the applicant, and internal relocation to Dhaka would be a viable option.  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 public law error in relation to the Board’s decision.

13.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.

14.The applicant’s appeal is accordingly dismissed.

The Applicant, unrepresented, acting in person