RE HOSSAIN ANOWAR

CACV 396/2022

[2023] HKCA 469

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 396 OF 2022

(ON APPEAL FROM HCAL 1115/2019)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”)  given on 27 September 2022 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against (1)  the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 18 March 2019 (“the Board’s Decision”)  dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 11 April 2018 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim; and (2)  the Director’s Decision itself.

Background

2.  The applicant is a national of India. He entered Hong Kong on 22 December 2015 as a visitor, but he overstayed and surrendered to the Immigration Department on 6 January 2016.  On 9 August 2016, he lodged a non-refoulement claim.

3.  The applicant’s claim was based on a fear of being harmed or killed by his uncles and members of the All India Trinamool Congress due to a land dispute.  The details of the applicant’s claim have been summarised by the Judge at [6] and [7] of the Judge’s decision (“the CALL-1 Form”)[1].

4.  By the Director’s Decision, the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4] and the torture risk[5].

5.  The applicant appealed to the Board.  After an oral hearing on 17 January 2019, the Board dismissed the appeal by the Board’s Decision, which covered all four grounds for non-refoulement protection.  The Board found that the inconsistencies and discrepancies in the applicant’s evidence rendered his evidence incredible.

The Judge’s decision

6.  The applicant filed a Form 86 on 25 April 2019, seeking to judicially review the Board’s and the Director’s Decisions.  Pursuant to the principles set out in Re Moshsin Ali [2018] HKCA 549, the Judge amended the Form 86 and proceeded on the basis that the intended judicial review was against the Board’s Decision only.  The applicant set out his grounds in the Form 86, which were summarised by the Judge as follows (at [14] of the CALL-1 Form):

“(1)  The Director had failed to give proper weight to state acquiescence and the public officers failed to provide reasonable protection to him. Although the Director had referred to the country of origin information (‘COI’), he did not give due weight to the evidence in his favour. This case involves the state does not provide sufficient protection for its citizens. Corruption and incompetence of the administration in his country is very serious and there are reports on this aspect. The Director applied the COI in an unfair manner so as to suit his pre-conceived conclusion.

(2)  The adjudicator failed to make sufficient enquiries and she failed to take into account his situation of not being able to obtain all the documents. She also failed to give him sufficient chance to obtain the documents. Yet she held that he was unable to give credible evidence to prove his case.”

7.  After summarising the facts and background of the case, giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant the applicant leave to apply for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [15] to [21] of the CALL-1 Form:

“15.  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).

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

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.  Those grounds in paragraph 14 above are not valid reasons to challenge the Board’s Decision. Ground (1)  is only his bare assertions or opinions without any evidence in support. Ground (2)  is also his bare assertion as up to this stage, he has not been able to disclose what documents he needs to prove his case. From the findings of the Board, it seems that those inconsistences in his evidence are not a matter of documentary evidence.

19.  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.

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

CONCLUSION

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

Grounds for appeal

8.  In the Notice of Appeal filed on 30 September 2022, the applicant stated that he “will show some important argument”, without providing particulars.

9.  In his written submissions lodged on 14 October 2022, the applicant simply repeated the dangers he said he would face should he return to India, and claimed that the Director and the Board made “many many mistake” without particularising what these were.

10.  The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

11.  The applicant has in his Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

12.  In his application in the court below, the applicant provided no particulars as to any respects in which the Board had acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

13.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

14.  As we have noted, the applicant has advanced no viable grounds of appeal against the Judge’s decision.

15.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.