Re Molla Ali Akbar

CACV 769/2026, [2026] HKCA 1773

On Appeal From [2026] HKCFI 4058

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 769 OF 2026

(ON APPEAL FROM HCAL NO. 1656 OF 2025)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

Introduction

1.This is the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) dated 21 July 2026[1] refusing his application for leave to apply for judicial review against the decision dated 15 July 2025 of the Torture Claims Appeal Board (“the Board”). The Board had dismissed his appeal against the decision dated 27 January 2025 of the Director of Immigration (“the Director”) which in turn had rejected the applicant’s non-refoulement claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2[5] risk grounds.

Background

2.The applicant is a national of Bangladesh born in 1990.  He entered Hong Kong illegally and was arrested by the police on 28 August 2024. He subsequently raised a non-refoulement claim on the basis that if he returned to Bangladesh, he would be harmed or killed by a group within the Awami League led by Anisul Haque (“Group B”) who had targeted him because he was a dedicated follower of the rival group led by Shah Alam (“Group A”).  He claimed to have been attacked twice by members of Group B in 2018 and July 2023. He was traumatised after the second attack, so he left Bangladesh on 21 September 2023 and came to Hong Kong through Mainland China.  Details of the applicant’s background, the basis of his claim and the Board’s reasons for rejecting his appeal were set out in the Board’s decision[6].

3.In gist, the Board found the applicant’s account incredible in several material aspects. First, he failed to mention in his written claim that he was threatened by Group B members and that they were looking for him when he was hiding in Dhaka.[7] Second, his claimed fear from the police, and members of the Bangladesh Nationalist Party (“BNP”) and Jamaat-e-Islam (“Jamaat”) were not credible as he had departed Bangladesh legally through Dhaka airport without difficulty. Third, there was nothing to show that he had offended the BNP or Jamaat people before his departure.[8]  Fourth, it was not shown that the incident in February 2025 during which his house was burnt down was targeted at him.[9]  The Board further found the newspaper clippings and articles submitted by the applicant only showed the general situation in Bangladesh from August 2024 to early 2025 and bore no specific relevance to his case, notably because he had left Bangladesh in September 2023 and was totally unconnected with the events that happened afterwards.[10] 

4.As to risks of harm, the Board assessed that the ill-treatments and harm feared by the applicant were unlikely to materialize and were not well-founded[11]. Specifically, the Board considered that even if the applicant would face risks of harm from members of Group B, BNP or Jamaat, internal relocation to cities such as Chittagong or Bogra was reasonably viable, which would mitigate the claimed risks.[12] The Board, however, noted that state protection might not be a viable option if he were to return to his native place as his enemies live in his locality and he might not be able to obtain timely help from the police.[13]  The Board concluded that the applicant had failed to prove any real risk to the requisite threshold entitling him to protection under any of the applicable grounds.

5.By a Form 86 filed on 22 July 2025, the applicant applied for leave to judicially review the Board’s decision. He did not raise any grounds for seeking relief in his Form 86 and supporting affirmation. He did not request for oral hearing. By a Form CALL-1 dated 21 July 2026, the Judge dismissed his application on the ground that the applicant had given no valid reason to challenge the Board’s decision and thus failed to show any realistic prospect of success in his intended application.

Appeal to this Court

6.On 27 July 2026, the applicant filed a Notice of Appeal against the Judge’s decision. The stated grounds of appeal are that (1) the decisions are unlawful; (2) the decisions failed to take into account many things and issues; and (3) his life is in danger in his home country, which is why he cannot return. The applicant seeks orders of certiorari to quash the decisions of the Director, the Board and the Judge.

7.The applicant lodged a skeleton argument on 10 August 2026. He reiterated that it was unsafe to return to his home country and his wish to remain in Hong Kong. He also raised various challenges to the Director’s decision, including failure to give proper weight to the presence of acquiescence as the applicant was tortured by the police and enforcement agencies, failure to consider the country-of-origin information (“COI”) and reports which supported the applicant’s case about lack of police protection and corrupt and incompetent Bangladesh administration, and failure to adhere to the high standard of fairness in assessing his claim and thus meet the Wednesbury test. It was also argued that the Board failed to make sufficient enquiry and did not allow the applicant sufficient opportunity to arrange relevant evidence to support his claim. The skeleton argument further referred to the legal thresholds for protection under the applicable grounds and asked this court to reconsider his case.

8.At the hearing, the applicant stated that it was unsafe in Bangladesh but the decisions makers were not aware of the situation; he is receiving treatment in Hong Kong for the wrist injury that he sustained in Bangladesh and the next appointment is in December 2026; and his friend who belonged to the same political group was recently arrested, and if he were to return to the country he would also be arrested.  He sought to adduce documents to show his next medical appointment and that his friend had been arrested and also three internet articles dated 9, 13 and 19 September 2026, which he said showed the country condition to be chaotic and out of control.  We are prepared to accept that the applicant has a medical appointment in December and it is thus not necessary for the applicant to adduce the appointment slip. As to the other documents, we had refused to allow the applicant to adduce them because they have no bearing on the outcome of the applicant’s appeal, given that the Board had found his claim that he feared harm from the police to be incredible and that the current situation in Bangladesh was irrelevant as they were events after he left the country.

Discussion

9.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].  Relevantly, assessments of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are primary decision makers. 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.

10.We would first make some overall observations about the grounds and arguments raised by the applicant in this appeal. Firstly, they were not raised in the application before the Judge. It is established law that it is not open to an appellant to rely on grounds that were not argued in the court below, especially when they are fact-sensitive: Flywin Co. Limited v Strong & Associates Limited (2002) 5 HKCFAR 356 at [37]-[39].  Secondly, in respect of the applicant’s various challenges against the Director’s decision, as the applicant had appealed it to the Board, the Director’s decision had been superseded by the Board’s decision. It is not open to the applicant to challenge the Director’s decision by way of judicial review.: Re Moshsin Ali [2018] HKCA 549 at [45].  The complaints levelled against the Director’s decision are therefore irrelevant and cannot serve to advance the applicant’s appeal. Thirdly, they also do not properly engage with the reasons of the Judge in refusing his application or the reasons of the Board in dismissing his appeal against the Director’s decision.

11.Specifically, the grounds and submissions directed to the Board’s decision are unarguable for the following reasons:

(1)  The complaint that the Board did not give the applicant sufficient time to arrange evidence to support his claim and his appeal is devoid of particulars. There is also no basis for it, which is contrary to what transpired during the proceedings before the Board.  After the first hearing took place before the Board on 21 March 2025, the applicant had submitted additional newspaper clippings and articles to the Board on 27 March 2025. The second hearing took place on 16 April 2025. In its decision, the Board set out in detail the contents of the additional materials submitted by the applicant at §§38 to 64. The Board found the contents of the additional materials were unconnected to his case for reasons elaborated at §§65 to 67.  

(2)  Further, the applicant’s submissions that he was tortured by the police and enforcement agencies was not borne out by the facts and circumstances of his claim. Though the Board found that state protection may not be readily available to the applicant should he chose to relocate to his home, the Board assessed that any risk of harm would nevertheless be negated on the availability of internal relocation, having regard to the COI and the work experience of the applicant.[14]  These are findings open to the Board based on the COI and the evidence it received.  The applicant’s assertions did not properly engage with the Board’s reasons for dismissing his appeal.

(3)  As to the submissions relating to legal thresholds of the applicable grounds, they are simply general statements without any elaboration. The applicant has not explained how they will advance his appeal. Before the Judge, the applicant did not identify any errors of law in the Board’s application of the threshold tests in assessing the claim.  It should also be pointed out that it is not the function of the Court to re-assess the applicant’s claim by reference to the applicable threshold.

(4)  More importantly, the applicant did not identify any errors of the Judge in dismissing his application for leave to apply for judicial review. Given that no ground for seeking relief was contained in the Form 86 and the accompanying affirmation, the Judge’s holding that the intended judicial review had no prospect of success cannot be faulted.

12.For these reasons, the applicant’s appeal has no merit. Accordingly, we dismiss the appeal.

The applicant, unrepresented, acted in person.

[1] [2026] HKCFI 4058

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5] This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[6] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001656_2025_files/the_Board's_Decision.pdf

[7] §§25 to 29 of the Board’s decision

[8] §§32 to 33 of the Board’s decision

[9] §§36 to 37 of the Board’s decision

[10] §§65 to 67 of the Board’s decision

[11] §§80-82, 89 and 91 of the Board’s decision

[12] §§72 to 76 of the Board’s decision

[13] §71 of the Board’s decision

[14] §§72 to 76 of the Board’s decision