RE MD FATTAH AHMED

CACV 6/2024, [2025] HKCA 53

On Appeal From [2023] HKCFI 3268

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 6 OF 2024

(ON APPEAL FROM HCAL NO. 69 OF 2022)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court)  :

1)  The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung of 21 December 2023 in which he refused to grant leave to him to apply for judicial review.

2.  The applicant consented on 4 January 2024 for the appeal to be determined on the paper without an oral hearing.

2)  Background

3.  The applicant is a national of Bangladesh.  He allegedly entered Hong Kong illegally from the Mainland on 5 March 2020.  He lodged a non-refoulement claim on 1 May 2020[1].  

4.  The basis of the applicant’s claim is that he would be harmed or killed by a neighbour called Mr Tahajuddin because of a land dispute[2].

5.  The background facts have been summarized in the decision of the Judge at [4] to [6].

3)  The Director’s Decision

6.  The Director of Immigration (‘the Director’)  decided against the applicant’s non-refoulement claim on 17 November 2020.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk (‘BOR 3’), Bill of Rights Article 2 (right to life)  risk (‘BOR 2’), as well as other statutory and convention rights against torture and persecution[3] (‘the Director’s Decision’).

4)  The Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  Having regard to the circumstances of the applicant’s case, the Board dismissed the applicant’s appeal on 23 November 2021 based on the available evidence without an oral hearing[4] (‘the Board’s Decision’).

8.  The Board’s finding is summarized in the decision of the Judge at [10] to [12].

5)  Decision of the Judge

9.  The applicant filed his Form 86 and supporting affirmation on 18 January 2012[5].

10.  The Judge agreed with the Board’s decision in that the applicant’s claim for non-refoulement should be rejected on the basis that his risks (if any)  can be avoided by internal relocation[6].  The Judge, however, did not share the view of the Board that the applicant could simply avoid non-refoulement risks by transferring his land to someone else. 

6)  Grounds of appeal

11.  The applicant in the notice of appeal simply referred to his attached 5-page written submission which stated that :

(1)  The applicant’s neighbour tried to harm the applicant on three previous occasions;

(2)  The Director did not believe the applicant;

(3)  The Board made many errors;

(4)  The High Court did not consider his argument; and

(5)  The applicant could find error in the Board decision but the High Court could not.

7)  Our view

12.  We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong : see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

13.  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in assessing the Board’s Decision.  None of the arguments raised by the applicant shows the Judge has made any error of law.

14.  Irrespective of the different views of the Judge and the Board on the avoidance of persecution risk, the Board had also found that the applicant’s neighbour did not have a genuine interest in pursuing him for the land.  Further, if the applicant has a risk, it is a localised risk and internal relocation is reasonably viable for him.

15.  We see no basis to disturb the Judge’s decision.  Accordingly, the appeal is dismissed.