RE RAHMAN HANIFUR alias RANA

CACV 267/2023, [2024] HKCA 556

On Appeal From [2023] HKCFI 2102

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 267 OF 2023

(ON APPEAL FROM HCAL NO 1132 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  This is the applicant’s appeal against the order of Deputy High Court Judge KW Lung (“the Judge”) dated 23 August 2023 ([2023] HKCFI 2102) (“the Leave Decision”) refusing to grant him leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 4 April 2019, whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 16 July 2018.

2.  On 28 August 2023, the applicant indicated his consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceeded to consider this appeal on paper based on the available materials.

BACKGROUND

3.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 9 July 2012 and was arrested by the police for being a suspected illegal immigrant.  On 11 July 2012, he raised a torture claim which was rejected on 28 January 2013.  On 21 June 2013, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by MD Rafiqul Islam (“Rafiqul”) and Rafiqul’s people who were associated with the Bangladesh Nationalist Party (“BNP”).  Details of the applicant’s claim have been summarised by the Judge at [4] ‑ [5] of the Leave Decision.

4.  By a Notice of Decision dated 16 July 2018 (“the Director’s Decision”), the Director dismissed the applicant’s non-refoulement claim on all applicable grounds other than the risk of torture[1], namely, BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

5.  The applicant appealed the Director’s Decision to the Board.  On 4 April 2019, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons were summarised by the Judge at [8] ‑ [11] of the Leave Decision:

“8. The Board recapped the applicant’s claim and his personal background [25]-[53]. Having considered the evidence, the Board found that the applicant’s accounts were not credible or reliable [58]. For example, the applicant conceded that the information about how influential BNP was in his home village was made without foundation [58]. His evidence about his own financial situation, being able to lend Rafiqul a loan, was confusing and inconsistent [59]. His testimony about his earnings overseas was equally unreliable [60]. As a result, the Board cast doubt on the applicant’s capacity to lend Rafiqul a loan of the claimed sum [61]. It also questioned why the applicant would lend money to Rafiqul, concluding that there was no credible evidence to support this claim [62]-[62].

9. Even taking the applicant’s claim to the highest, the Board found that the applicant never sustained any serious injuries [64]; that there was no credible evidence to support that the applicant would face any risk of harm because of a false case [65]; that it was hearsay evidence that his wife was kidnapped [66]; and that it was illogical that Rafiqul would wish to confront the applicant since he was the one who wanted to avoid the repayment [68].

10. Meanwhile, the Board rejected the assertions that the police would not assist him in this private monetary dispute [72]. It also considered that the past harms failed to attain the minimum level of severity [77]. In any event, internal relocation was a viable option [81]-[88].

11. For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed his appeal.”

THE JUDGE’S DECISION

6.  On 29 April 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground of intended review was given by the applicant in his Form 86 or supporting affirmation.

7.  As the applicant did not request for an oral hearing, the Judge considered his application on paper.  On 23 August 2023, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:

“14. 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).

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

16. 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.’

17. The Board did not accept his evidence and found that state protection and alternative internal relocation are available to him. There is no valid reason to challenge the Board’s Decision.

18. 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.

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

CONCLUSION

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

THIS APPEAL

8.  In his Notice of Appeal filed on 28 August 2023, the applicant only stated:

“THE HIGH COURT DID NOT GIVE ME A GOOD JUDGMENT. THERE IS A LOT OF MISTAKE IN ADJUDICATOR DECISION BUT THE HIGH COURT DID NOT SEE.” [sic]

9.  Contrary to the directions of the Registrar of Civil Appeals dated 28 August 2023, the applicant did not lodge any written submissions.

DISCUSSION

10.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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.  The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)]).

11.  Further, the assessment of evidence, COI, 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: Re Kartini [2019] HKCA 1022.

12.  In our view, the applicant’s appeal is a nonstarter.  Although he alleges that there are mistakes in the Board’s Decision, he fails to condescend upon particulars.  More importantly, he fails to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Leave Decision.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  None of his allegations are proper grounds of appeal.  His appeal must fail on this basis alone.  In any event, we have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.  We see no basis to disturb the Leave Decision.

13.  For the above reasons, the applicant’s appeal against the Leave Decision has no merit and is dismissed.