|
CACV 87/2025, [2025] HKCA 689
On appeal from [2025] HKCFI 504
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 87 OF 2025
(ON APPEAL FROM HCAL NO. 2228 OF 2019)
____________________
| RE |
RAJIB HOSSAIN |
Applicant |
____________________
| Before: |
Hon Chu VP and H. Au-Yeung J in Court |
| Date of Judgment: |
4 August 2025 |
________________________
JUDGMENT
________________________
Hon H. Au-Yeung J (giving the Judgment of the Court):
1. This is an appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) given on 18 February 2025[1] refusing leave to the applicant to apply for judicial review against the decision dated 12 July 2019 of the Torture Claims Appeal Board (“the Board”) dismissing the applicant’s appeal against the decision dated 6 December 2018 of the Director of Immigration (“the Director”) which rejected the applicant’s non-refoulement claim.
2. The applicant’s appeal was scheduled to be heard on 18 July 2025. The applicant was directed to lodge his written skeleton argument not less than 28 days before the hearing and further warned that if he failed to do so, he shall be deemed to have waived the right to have an oral hearing and the hearing date would be vacated with his appeal being determined on paper. This was communicated to the applicant by the Court’s letter dated 19 May 2025 and the Notice of Hearing dated 2 June 2025.
3. Despite the directions, the applicant has failed to lodge any skeleton argument by the stipulated time. The hearing date was accordingly vacated, and we have proceeded to process this appeal on paper based on the available materials.
The applicant’s claim
4. The applicant is a national of Bangladesh, aged 41. He last entered Hong Kong on 8 July 2006 as a visitor and had overstayed. On 7 December 2006, he was arrested by the police and was referred to the Immigration Department on 9 December 2006. He had previously lodged a torture claim[2] which was rejected on 15 January 2014. He did not appeal against the decision and his torture claim was finally determined in accordance with section 37V(2)(a) of Part VIIC of the Immigration Ordinance, Cap. 115. On 15 November 2018, he submitted the Supplemental Claim Form for assessment on all applicable grounds (other than the torture risk ground) under the Unified Screening Mechanism.
5. The applicant’s claim was on the basis that, if refouled, he would be harmed or killed by (1) extortionists from the Awami League (“AL”) as his father had refused to pay them protection money; and (2) the creditor of his father for failing to repay a loan. The details of his claim were set out at [4] to [12] of the Board’s decision.
6. In gist, the applicant claimed that in around 2004 to 2006, he and his father, who were supporters of the Bangladesh Nationalist Party (“BNP”), were assaulted and threatened by AL extortionists for refusing to pay them protection money whilst running a shop selling mobile phones in Dhaka. The applicant went to live in Sylhet and subsequently arrived in Hong Kong in July 2006. The applicant feared for being pursued by the son of a creditor for a debt owed by his father which was used to fund his garment business in 2006, and despite the fact that his father had died of cancer in 2015 and that the creditor had passed away in 2016. In 2014, the applicant married his wife in Hong Kong, who is an Indonesian and a permanent resident of Hong Kong. She has two children from her previous marriage and a child borne with the applicant. The applicant now looks after the three children whilst his wife works.
The Director’s and the Board’s decision
7. By a decision dated 6 December 2018, the Director rejected his claim based on BOR 3 risk[3], BOR 2 risk[4] and persecution risk[5] grounds.
8. The applicant appealed to the Board. A hearing took place on 10 April 2019 during which the applicant had testified and answered questions from the Board. By a decision given on 12 July 2019, the Board dismissed his appeal.
9. Apart from the personal background of the applicant and the small business he and his father had operated in Dhaka in 2003 to 2006, the Board rejected the entirety of the applicant’s claim, having regard to the oral and documentary evidence of the applicant which revealed significant inconsistencies and vagueness in many key aspects of his claim. The Board found that the applicant was not a reliable witness and his claim has been embellished and/or fabricated to create a claim for protection. In particular, the applicant has failed to mention to the Board about the extortion demands of the AL people and the allegedly violent assault inflicted on him. The Board also found it difficult to reconcile with the fact that the AL was not in power at the time when the applicant claimed that he and his father were subject to extortion and violence from the AL people. On the evidence, the Board did not accept that the applicant and his father were ever subjected to any adverse treatment by people associated with the AL or by any money-lenders due to any unpaid debts. For these reasons, the Board concluded that the applicant had failed to establish the requirements for non-refoulement protection under any of the applicable grounds apart from the torture risk ground.
The Judge’s decision
10. By a Form 86 dated 6 August 2019, the applicant applied for leave to judicially review the Board’s decision. In his supporting affirmation, he stated that the Director and the Board had no practical knowledge of his claim and that he has a child in Hong Kong.
11. The Judge held an oral hearing on 9 December 2024 which was attended by the applicant. By a judgment dated 18 February 2025, the Judge refused to give leave for judicial review. He gave his reasons at [15] to [20] as follows:
“15. 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).
16. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board was wrong in its decisions because it did not accept his evidence.
17. 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.”
18. The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision. The applicant’s complaint under paragraph 16 is not a valid ground to challenge the Board’s Decision.
19. There is no reason that the Court should interfere with the Board’s finding of the facts.
20. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.”
This appeal
12. On 24 February 2025, the applicant filed a Notice of Appeal to appeal the Judge’s decision. He stated in his Notice of Appeal that the Judge’s decision was unfair and that his life is in danger as he is in serious risk of being harmed or killed by his powerful enemies. He also stated that the police in Bangladesh will not help him.
Our reasons for decision
13. 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 of Appeal’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].
14. Further, it is well established that 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 as they are the primary decision makers. The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022 at [13].
15. In light of the established legal principles set out above, we are of the view that the grounds put forward by the applicant are not arguable. Our reasons are as follows:
(1) The complaint that the Judge’s decision is unfair is vague and devoid of particulars. The applicant has not identified any palpable error in the Judge’s decision to warrant the intervention of this court.
(2) In his supporting affirmation before the Judge, the applicant alluded to the fact that he is married to a Hong Kong resident and they have a child in Hong Kong. This, however, does not detract from the fact that he does not have any right to enter or to remain in Hong Kong. It is well-established that a family member (who has a right of permanent residence in Hong Kong) of a person (who has no right to remain in Hong Kong) cannot rely on the family member’s own rights under the Bill of Rights or the Basic Law to require the Director to grant a right to remain in Hong Kong to that other person: BI v Director of Immigration [2016] 2 HKLRD 520 at [92(7)] and Comilang Milagros Tecson v Director of Immigration (2019) 22 HKCFAR 59 at [57], [65] and [69]; Re Purisima Aida P [2022] HKCA 637 at [15]. Accordingly, the fact that the applicant is married to a permanent Hong Kong resident and have built a family here is not a relevant consideration in assessing his non-refoulement claim.
(3) Furthermore, we have separately considered the Board’s decision. Like the Judge, we do not discern any legal errors, irrationality or procedural irregularities. We see no proper basis for disturbing the Board’s rejection of the applicant’s claim on credibility basis. The Board, as the primary decision-maker, was entitled to come to this conclusion for the reasons given in its decision.
16. Having considered the materials before us, we agree with the Judge that the intended judicial review has no reasonable prospect of success, and that leave to apply for judicial review should be refused.
17. Accordingly, this appeal is dismissed.
(Carlye Chu)
Vice President |
(Herbert Au-Yeung)
Judge of the Court of First Instance |
The applicant, unrepresented, acted in person.
[1] [2025] HKCFI 504
[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.
[3] This refers to the 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 violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.
[5] 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.
|