Re Ahmed Sawon

CACV 773/2026, [2026] HKCA 1765

On appeal from [2026] HKCFI 3850

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 773 OF 2026

(ON APPEAL FROM HCAL NO. 1056 OF 2022)

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REASONS FOR JUDGMENT

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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 Levy (“the Judge”) dated 17 July 2026[1] refusing his application for leave to apply for judicial review against the decision dated 30 September 2022 of the Torture Claims Appeal Board (“the Board”). The Board had dismissed his appeal against the decision dated 29 June 2021 of the Director of Immigration (“the Director”) which in turn 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.

2.The applicant was absent at the hearing of the appeal.  We dismissed the appeal and indicated we would hand down our reasons later.  Our reasons appear below.

Background

3.The applicant is a national of Bangladesh born in 1985.  He entered Hong Kong illegally and was arrested by the police on 31 August 2020. He subsequently lodged a non-refoulement claim on the basis that if he returned to Bangladesh, he would be harmed or killed by members of the Awami League (“AL”) as he was an active member of the Bangladesh Nationalist Party (“BNP”). He claimed that the AL members had attacked, tortured and abducted him, his shop was looted, and the police refused to accept his complaints. 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].

4.The Board rejected the applicant’s claim primarily on credibility grounds, finding his account internally inconsistent and implausible. He gave confusing and shifting dates for the alleged incidents and his political knowledge of the BNP was almost non-existent, particularly regarding the 2014 general election, when considered against the country-of-origin information (COI).[7]  The Board noted that the applicant had provided no objective evidence, such as police report, proof of shop ownership or medical report, and his claimed broken wrist was not an injury that could only have resulted from torture.[8]  The Board considered that, even if his claim was credible, the applicant could safely relocate elsewhere in Bangladesh.[9]  The Board concluded that the applicant failed to prove any real risk of harm entitling him to protection under any of the applicable grounds.[10]

5.By a Form 86 filed on 7 October 2022, the applicant applied for leave to judicially review the Board’s decision. He did not set out any grounds for seeking relief in his Form 86. He stated in his supporting affirmation that the Board did not listen to his statement and did not believe him, and the hearing was for a short time and he could not explain his problem. 

6.The Judge heard the application at an oral hearing on 7 May 2026. By a Form CALL-1 dated 17 July 2026, the Judge dismissed his application for reasons on the ground that the intended judicial review had no realistic prospect of success.  Specifically, the Judge held (at §§6 and 7) the Board correctly applied the law and had observed a high standard of fairness, the applicant’s grounds were vague, general and lacking in particulars and failed to show any errors of law, procedural unfairness or irrationality in the Board’s decision, and in the circumstances there was no basis for the court to interfere with the Board’s findings on credibility and feasibility of internal relocation and the assessment of risks.

Appeal to this Court

7.On 27 July 2026, the applicant filed a Notice of Appeal against the Judge’s decision which stated the following grounds: (1) the Director failed to give weight to the presence of state acquiescence and referred to COIs which only suited his preconceived conclusion, leading to an unfair decision; (2) the Board failed to make sufficient inquiry into the applicant’s claim and did not give him sufficient chance to arrange relevant supporting evidence; and (3) the Judge, the Board and the Director all failed to take his arguments into account.

8.The applicant’s written submissions lodged on 5 August 2026 state the following:

(1)  The decision has the effect of finally disposing of the applicant’s claim, making him liable to be removed and entailing significant implications for his substantive right not to be subjected to torture and his right to non-refoulement protection. Hence, high standards of fairness are required: Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 at [43] to [45] and [51]; and ST v Betty Kwan[11] [2014] 4 HKLRD 277.  

(2)  The appeal before the Board is a rehearing, but the Board erred in approaching the matter by trying to see if it could “find fault with the decision of the Immigration Officer”, whereas the Board should have considered matters such as the country conditions.

(3)  At common law, there are minimum standards of procedural fairness required and the decision-maker is under a duty to act fairly, which is a “constitutional duty”: The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 at 383D; Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243 at 253C-D; and Rowse v Secretary for the Civil Service & Ors [2008] 5 HKLRD 217 at [134].

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, many of them 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 applicant has not explained how the grounds of appeal or submissions on the cases and general principles of law relate or apply to his case or his appeal. They also do not properly engage with the reasons of the Judge in refusing his application and the Board’s reasons for dismissing his appeal. Thirdly, it is not open to the applicant to challenge the Director’s decision and its assessment on state acquiescence and the COI in this appeal. Since he had appealed the Director’s decision to the Board, the decision is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.

11.Specifically, the grounds and submissions put forward by the applicant are unarguable for the following reasons:

(1)  The procedural complaint in the Notice of Appeal that the Board did not give the applicant sufficient chance to arrange relevant evidence lacked particulars. In any event, the applicant never made any request to the Board or to the Judge to submit additional evidence to support his claim. He expressly confirmed and adopted the evidence in the bundle before the Board. There is no basis to complain that he was deprived of the opportunity to prove material elements of his claim.  

(2)  The complaint in the written submissions that the Board did not approach the appeal as a rehearing is factually incorrect. It is evident from the Board’s decision that it did not approach the appeal by simply reviewing the Director’s decision to see if it was justified. On the contrary, the Board gave independent and detailed consideration and analysis of the applicant’s claim before reaching its own finding and conclusion on the case.

(3)  Further and importantly, the applicant has not pointed to any error in the Judge’s reasoning and decision. Having considered the materials before us, we are not satisfied that the grounds advanced by the applicant before the Judge are reasonably arguable.  There is no proper basis for us to disturb the Judge’s decision.  

12.For the above reasons, the applicant’s appeal has no merits.  Accordingly, we had dismissed the appeal.

The applicant, unrepresented, acted in person.

[1] [2026] HKCFI 3850

[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/2022/HCAL001056_2022_files/the_Board's_Decision.pdf

[7] §§67 to 82 of the Board’s decision

[8] §§44, 88 to 89 of the Board’s decision

[9] §§83 to 87 of the Board’s decision

[10] §§88 to 97 of the Board’s decision

[11] It was mistakenly cited as ST v Director of Immigration.