Iqbal Adnan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

CACV 313/2020

[2021] HKCA 129

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 313 OF 2020

(ON APPEAL FROM HCAL NO 1988 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

1.1This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan in which he refused to grant leave to the applicant to apply for judicial review. 

1.2The applicant failed to comply with the directions of the Registrar of Civil Appeals given on 9 November 2020 to file his skeleton submission within the time specified.  He lodged his skeleton submission out of time on 5 January 2021.  Notwithstanding the non-compliance the Court allowed the hearing to be heard at the scheduled time.  However, the applicant did not turn up at the hearing.

2)  Factual background

2.1The applicant is a national of Pakistan.  He arrived in Hong Kong from Mainland on 16 August 2011 but was refused entry by the Immigration Department.  He lodged his non-refoulement claims on the same date. 

2.2The basis of the applicant’s claim is that, if returned, he would be harmed or killed by the family members of his wife who had opposed to their marriage. 

2.3The background facts have been summarized by the Judge in the Form Call-1[1] at [2]-[10].

3)  The Director’s Decision

3.  The Director of Immigration (“the Director”) decided against the applicant’s claims on 11 November 2016.  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 (“the Director’s Decision”). 

4)  The Board’s Decision

4.1The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (“the Board”) on 24 November 2016.  After a hearing held on 4 July 2018, the Board dismissed the applicant’s appeal on 6 September 2018 (“the Board’s Decision”).

4.2The Board found that the applicant’s evidence of his claim inconsistent, evasive and implausible.  The Board was not satisfied that he had actually married his wife or that he departed Pakistan out of genuine fear of being harmed or killed by her family, and that in any event state protection as well as internal relocation was possible.  The applicant failed on all applicable grounds.

5)  Decision of the Judge

5.1The applicant complained before the Judge that the Director and the Board failed to protect him from “extra judicial killing” which was Wednesbury unreasonable.  There was serious corruption within the authorities in his home country.  Further, the Director did not maintain high standard of fairness.

5.2The Judge held that the applicant’s complaints were merely broad and vague assertions.  The applicant’s grounds only contain several pages of key words and phrases without giving particulars on how they applied to his case or how the Director or the Board erred in their decisions.  The Judge noted that the Board rejected the applicant’s case based on an adverse finding of his credibility through detailed analysis and reasoning. 

6)  Grounds of appeal

6.1In the notice of appeal, the applicant stated that the gravity of his circumstances have not been properly weighed.  He should be given an opportunity to plead his case.  In the applicant’s supporting affirmation, he stated that a good ground of appeal has not been considered at the stage of application for leave to apply for judicial review. 

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.

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, absent