RE UMAR KHATAB

CACV 444/2018

[2019] HKCA 98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 444 OF 2018

(ON APPEAL FROM HCAL NO. 1114 OF 2017)

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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 against the decision of Campbell‑Moffat J given on 7 September 2018 in which she refused to grant leave to the applicant to apply for judicial review.

2)  Factual background

2.1  The applicant is a Pakistani national who allegedly entered into Hong Kong illegally on 28 October 2015.  On 30 October 2015 and 23 December 2015 respectively, he raised his torture claim and filed his non-refoulement claim form to the Immigration Department.

2.2  The basis of the applicant’s claim is that he would be harmed or killed by supporters of the Pakistan Muslim League (Nawaz) (‘PML‑N’) if he was to be sent back to Pakistan because he was a supporter of another political party in Pakistan, namely the Pakistan Tehreek‑e‑Insaf (‘PTI’) and he had refused to support and join PML‑N.

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

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

3.1  The Director decided against the applicant’s torture claim on 5 February 2016.  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’).

3.2  The Director further decided against the applicant’s right to life claim on 24 November 2016 (‘the Director’s Further Decision’).  The Director’s Further Decision covered the applicant’s rights under Article 2 (right to life) of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision and the Director’s Further Decision to the Board on 8 December 2016.  After a hearing held on 30 October 2017, the Board dismissed the applicant’s appeal on 8 December 2017 (‘the Board’s Decision’).

4.2  The Judge succinctly summarized the Board’s finding as follows :

‘ 8. The Adjudicator analyzed the applicant’s claim on all applicable grounds. He arranged for an oral hearing and treated the appeal as a rehearing. He correctly set out the law and key legal principles including the burden and standard of proof. He was of the view that the protection racket, to which the applicant had fallen prey, was not a politically motivated act but a criminal enterprise. Their aim was to obtain money and not to do serious harm to the applicant. The injuries which the applicant had sustained were not sufficiently serious and the police could be relied upon to afford protection and to pursue the perpetrators. Lastly, he found the applicant to be a mature man who would be capable of maintaining a living elsewhere in Pakistan if relocation was the last resort. That being said, the political situation in Pakistan has been substantially altered in any event after the last General election which was won by PTI…’

5)  Decision of the Judge

5.  The Judge found that the applicant had not provided any grounds for judicial review.  The applicant did not rely on procedural irregularity, unfairness or unreasonableness.  The Judge considered the decisions of the Director and the Board and found that their determinations were open to them on the facts and eminently reasonable.

6)  Grounds of appeal

6.1  The applicant in the Notice of Appeal simply stated that his life is in danger in Pakistan and that he has a right to live as a human being.

6.2  In his ten page skeleton submissions in support of his appeal, the first nine pages contained factual repetitions of his background which led to his non-refoulement claim.  The last page of his submissions complained, but without elaboration, about error of law, the decision makers’ selective reliance of COI information to his prejudice, the decision makers ignoring the evidence of violence towards him and that the decision makers were biased.

7)  Our view

7.1  We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  Further an appeal against the Decision of the Judge is not an occasion for the applicant to regurgitate arguments which could and should have been raised before the Judge but was not raised before the Judge.  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].  The complaints of the applicant in the last page of his skeleton submissions are extremely vague and in any event are new arguments that have not been raised before the Judge.  We will not entertain such new arguments that have not been canvassed at the Court of First Instance: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].

7.2  Accordingly, the appeal is dismissed.