Re Sarker Nazmul

CACV 770/2026, [2026] HKCA 1770

On Appeal From [2026] HKCFI 3848

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 770 OF 2026

(ON APPEAL FROM HCAL NO. 1020 OF 2022)

_________________

________________

_________________

J U D G M E N T

_________________

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 Levy (“the Judge”) dated 17 July 2026[1] refusing his application for leave to apply for judicial review against the decision dated 21 September 2022 of the Torture Claims Appeal Board (“the Board”). The Board had dismissed his appeal against the decision dated 27 October 2020 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 1988.  He arrived in Hong Kong on 29 September 2019 and was permitted to remain as a visitor until 4 October 2019. He overstayed and surrendered to the Immigration Department on 19 February 2020. He lodged a non-refoulement claims on the basis that if refouled, he would be harmed or killed by the Sunni community as he is a member of the Kadiani (also known as Ahmadi) religious community.  He claimed to have converted from Sunni Islam to the Ahmadi faith in 2017, and was attacked several times by Sunni members in June 2018, January 2019 and May 2019.  He claimed he could not relocate or obtain protection from the authorities as 99% of the population is Sunni.[6]  Details of the applicant’s claim, the arguments before the Board and the Board’s reasons for rejecting his appeal have been set out in the Board’s decision[7].

3.In gist, the Board found the applicant was not a truthful witness and had manufactured his claims[8]. The adverse credibility findings rested on the applicant’s extremely poor knowledge of the Ahmadi faith despite claiming to be a promotional secretary, his lack of involvement with the Ahmadi community in Hong Kong and his tendency to alter his evidence. The Board accepted the applicant sustained injuries in May 2019, as shown in the medical document produced by the applicant, but found there was nothing to show that the injuries resulted from a Sunni attack[9]. The Board rejected the police report produced by the applicant to support the first attack as not genuine, bearing in mind the prevalence of fraudulent documentation in Bangladesh.[10]  Having rejected the core claims of conversion of faith, assaults and harm, the Board found the applicant had failed to prove to the requisite thresholds of protection under any of the applicable grounds.[11]

4.By a Form 86 filed on 29 September 2022, the applicant applied for leave to judicially review the Board’s decision. His grounds for seeking relief can be summarised as follows:

(1)  The Board’s decision was unreasonable, irrational and procedurally unfair. The Board had unlawfully fettered its discretion by refusing the appeal, and failed to meet the greater care and duty owned by the self-represented claimant, where the applicant’s “life and limb are in jeopardy” and it is his fundamental human right not to be subject to torture.  

(2)  There was no indication that the Board had interacted with the facts of the claim or conducted any analysis of the supporting documents to consider the BOR 2 risk ground.

(3)  The applicant will face hardship upon return. The Board has significantly relied on sources of news which is not officially recognised or is simply hearsay, and some cases which are outdated.  The dramatic changes and the lack of credible source of the information have led to its groundless speculation against his claim.

(4)  The process before the Board is a de novo hearing and the Board should have considered all the facts of the claim in coming to its findings.

5.The Judge heard the application at an oral hearing on 7 May 2026, during which the applicant said he had nothing to say or to add.  By a Form CALL-1 dated 17 July 2026, the Judge dismissed his application on the ground that his intended challenge had no realistic prospect of success. The Judge explained her decision in [8] and [9] of the Form CALL-1 (footnote omitted):

“8. As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality. In the present case, in assessing the applicant’s claims, the Board had regard to the relevant COI regarding the beliefs of the Ahmadi Muslim faith. It found that the applicant was not a truthful witness. The Board rejected the applicant’s claims regarding his conversion from the Sunni Muslim faith to the Ahmadi faith, and that he had been harmed, mistreated or his house vandalized. Although the Board accepted the applicant’s finger injury, however it did not accept that the loss of the tip of his finger was caused from an attack by a group of Sunni mem. Thus, the Board was not satisfied the applicant’s claimed fear of harm for the reasons he stated if refouled. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

9.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The applicant’s grounds stated in the Form 86 were vague and general, lacking particulars. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave.”

Appeal to this Court

6.On 27 July 2026, the applicant filed a Notice of Appeal against the Judge’s decision. He stated as his grounds of appeal that he disagreed with the Judge’s decision which did not scrutinise his claim properly, and that the court and the Board should not have rejected his claim because the problems in his country were severe and he would be killed by his enemies if he returned to Bangladesh.

7.The applicant has lodged written submissions on 9 September 2026 which stated that: (1) the Judge failed to apply the principle of irrationality when the Board had failed to evaluate and find whether there was a consistent pattern of gross and mass violation of human right in Bangladesh, and also failed to assess whether state protection existed in Bangladesh; (2) the Judge failed to apply the principle of procedural fairness which required the Director and the Board to give reasons for their decisions, when the Board had failed to give the applicant sufficient opportunity to arrange relevant evidence; (3) the Judge did not analyse the applicant’s claim properly despite the severity of his problem and all the proof of his claim had been submitted; (4) the Judge failed to apply the high standard of fairness when the decision has the effect of finally disposing of the applicant’s claim, which involved his fundamental human right of not to be subject to torture; (5) the Board significantly relied on sources of news that were not officially recognised or were simply hearsay; and (6) the applicant would face hardship and death in his home country as his enemies are now controlling the government and they are still looking for him.  

8.At the hearing, the applicant indicated that he had nothing to add.

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, most of the arguments 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, the general statements of legal principles and the criticisms levelled against the Judge and the Board are vague and unparticularised. The applicant did not explain how they are relevant to his claim. They also do not properly engage with the reasons of the Judge in refusing his application and the reasons of the Board in dismissing his appeal against the Director’s decision.

11.Specifically, the grounds and submissions are unarguable for the following reasons:

(1)  In the present case, the Board rejected the core basis of the applicant’s claim on credibility grounds, finding that his claims about conversion of faith, assaults and harm from the Sunni community were fabricated.  It concluded that none of the applicable grounds for protection were substantiated because the underlying factual claim was not proved. These are findings properly open to the Board on the evidence and for the reasons it gave. In the circumstances, the applicant’s assertion that his human rights would be violated or he would encounter hardship cannot stand.

(2)  It follows that the complaint that, notwithstanding the danger to his life, the Judge did not properly consider or analyse his claim also falls away. It also follows that it was not necessary for the Board to make a finding as to whether state protection would be available. Further, the applicant’s complaint that the Board failed to consider whether there was a consistent pattern of gross and mass violation of human rights has no relevance.

(3)  As to the submissions relating to the use of the COI, the applicant failed to identify which item of the COI was incorrect, outdated or unverified, or how they could have materially affected the Board’s assessment of his claim.  In any event, the submissions do not advance his appeal. The Board had used relevant COI to test the credibility of his evidence (such as his knowledge of the Ahmadi faith, the conversion process and the documentation) and to put in context the risk environment in Bangladesh. Ultimately, the Board found that while societal discrimination exists, the applicant’s core claims were untruthful and were not substantiated. 

(4)  As to the complaint about lack of procedural fairness, the applicant had put forward documents to support his claim, and had never requested to submit additional evidence to the Board or the Judge. There is also no basis to complain that the duty to give reasons was not met by the Board in light of the detailed reasons it gave.

(5)  The complaint that the Judge failed to apply the high standard of fairness has no relevance since it is not the Judge’s role in judicial review proceedings to consider the applicant’s claim afresh.

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

The applicant, unrepresented, acted in person.

[1] [2026] HKCFI 3848

[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] §§10 to 18 and 19 of the Board’s decision

[7] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL001020_2022_files/the_Board's_Decision.pdf

[8] §§52 to 58 of the Board’s decision

[9] §56 of the Board’s decision

[10] §§53 to 57 of the Board’s decision

[11] §§58 to 78 of the Board’s decision