Hanif Waqar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 299/2020

[2021] HKCA 128

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 299 OF 2020

(ON APPEAL FROM HCAL NO 1836 OF 2018)

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BETWEEN

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Before:  Hon Cheung JA, B Chu and S T Poon JJ in Court

Date of Hearing:  26 January 2021

Date of Judgment:  29 January 2021

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J U D G M E N T

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Hon S T Poon J (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 K.W. Lung in which he refused to grant leave to the applicant to apply for judicial review. 

2)  Factual background

2.1The applicant is a national of Pakistan.  On 21 September 2014, he entered Hong Kong illegally by boat.  He was arrested by the police on 30 April 2015 and raised his non-refoulement claim on 2 May 2015. 

2.2The basis of the applicant’s claim is that he would be harmed or killed by a person named Ikhlaq or by someone on his behalf so as to threaten the applicant’s father to transfer his ownership of a piece of land to Ikhlaq’s son. 

2.3The background facts have been summarized by the Judge in the Form Call-1[1] at [4]-[6].

3)  The Director’s Decision and the Director’s Further Decision

3.1The Director of Immigration (“the Director”) decided against the applicant’s torture claim on 31 July 2015.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (“BOR 3”), as well as other statutory and convention rights against torture and persecution (“the Director’s Decision”). 

3.2By a further decision of the Director on 26 May 2017, the Director also assessed BOR 2 (right to life) risk in respect of the applicant and decided against the applicant (“Director’s Further Decision”).

4)  The Board’s Decision

4.1The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (“the Board”) on 12 August 2015.  After two hearings held on 11 August 2017 and 6 September 2017, the Board dismissed the applicant’s appeal on 22 August 2018 (“the Board’s Decision”).

4.2The Board found that the general credibility of the applicant was doubtful.  While alleging that his father had documents of title to land, the applicant failed to submit any such document to support the allegation.  The Board also found that the applicant’s assertion that the police did not act on his report was a mere speculation.  His alleged political affiliation was also vague.  Besides, the applicant submitted some documents purportedly supporting his case but those documents bore the name of another person which have no relevance to his case. 

5)  Decision of the Judge

5.1At the hearing before the Judge, the applicant confirmed that he was free to express himself before the Immigration Department and the Board.  The applicant also confirmed that the Director’s Decision, the Director’s Further Decision and the Board’s Decision were explained to him respectively by his lawyer and friend. 

5.2The Judge noted that the Board rejected the applicant’s evidence based on his finding of facts against the applicant.  He held that there was no factual basis to support the applicant’s claim and he identified no error of the Board in arriving at its decision. 

6)  Grounds of appeal

6.1The applicant stated in the notice of appeal that the gravity of his case was not weighed or realized by the Director or the Board and that he should be given an opportunity to plead his case.  In his supporting affirmation, he stated that a good ground of appeal is not considered at the application for leave for judicial review stage.

6.2In his written submission filed on 29 December 2020, the applicant referred to several legal authorities on non-refoulement claims and mentioned some general principles without specifying how those principles related to his case.

6.3At the hearing, the applicant said he has a bullet inside his leg and he has medical records to prove that.  He asked this court to allow him to stay in Hong Kong.

7)  Our view

7.1We 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].

7.2It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.  The applicant has failed to do so.

7.3We see no basis to disturb the Deputy Judge’s Decision.  Accordingly, the appeal is dismissed.

The applicant, unrepresented, appearing in person