RE NAWAZ HABIB

CACV 189/2025, [2025] HKCA 591

On Appeal From [2025] HKCFI 1120

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 189 OF 2025

(ON APPEAL FROM HCAL NO 2813 OF 2019)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the order of Deputy High Court Judge Levy (“the Judge”) dated 7 April 2025 ([2025] HKCFI 1120) (“the Leave Decision”), refusing his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 20 September 2019 (“the Board’s Decision”), whereby the Board dismissed his appeal against the decision of the Director of Immigration (“the Director”) dated 14 March 2018 (“the Director’s Decision”) refusing his non-refoulement claim.

2.  On 11 April 2025, the applicant indicated his consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceed to consider this appeal on paper based on the available materials.

BACKGROUND

3.  The applicant is a national of Pakistan.  He surrendered himself to the Immigration Department on 7 March 2016 for illegal remaining.  He departed Pakistan by air on 3 March 2016 and arrived in Guangzhou on the same day.  Upon inquiry, the applicant stated that he entered Hong Kong by boat from Shenzhen on 6 March 2016 without permission.  He raised a non-refoulement claim on 9 August 2016 on the basis that, if refouled,  he would be harmed or killed by his cousin, Imran, and/or Imran’s associates, due to a dispute over the distribution of his late grandfather’s land.  Details of the applicant’s claim were summarised by the Judge at [4] ‑ [10] of the Leave Decision.

4.  By the Director’s Decision, the Director dismissed the applicant’s non-refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

5.  Subsequently, the applicant appealed against the Director’s Decision to the Board.  The applicant attended the oral hearing before the Board on 8 August 2019.  By the Board’s Decision, the Board dismissed his appeal and confirmed the Director’s Decision.  The Board’s reasons were summarised by the Judge at [13] of the Leave Decision:

“13. The Board found that there was no real risk of harm, because the Board found the applicant’s evidence to be unreliable due to material inconsistencies between his written evidence and oral statements given at the Board hearing. Such inconsistencies included conflicting evidence as to who held title to his grandfather’s land, the description of the applicant’s injuries, and how he was able to identify Imran as one of the assailants in the November 2015 attack. The Board raised these concerns with the applicant. However, he was unable to satisfactorily explain the inconsistencies. Therefore, the Board rejected his claim, and dismissed the applicant’s appeal.”

THE JUDGE’S DECISION

6.  On 24 September 2019, the applicant filed a Form 86 together with a supporting affirmation to apply for leave to apply for judicial review against the Board’s Decision.  No ground of challenge was advanced in his Form 86.  In his supporting affirmation, he merely stated that the Board’s Decision was unfair and at odds with the reality of his case.

7.  On 28 February 2025, the applicant attended an oral hearing before the Judge and a Punjabi interpreter was present to provide language assistance.

8.  By the Leave Decision, the Judge refused his application for leave to apply for judicial review.  Her reasons were set out at [15] ‑ [22] of the Leave Decision:

“15.  The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation, the applicant exhibited a copy of the Board’s decision, and stated that it was unfair and at odds with the reality of his case.  The applicant did not provide any details.

16.  At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application.  Apart from informing this court that he married a Hong Kong citizen in November 2017, and had applied for an identity card, the applicant stated that he had nothing to add.

17.  It is plain that the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  

18.  The Board’s Decision was arrived at after having carefully examined the applicant’s evidence.  It found that the applicant’s evidence was unreliable, thus there was no real risk of harm.  These are findings of fact, which the court in a judicial review will not interfere with.

19.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness in the Decisions of the Director and the Board.  I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks.

20.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Orders

21.  The Form 86 is amended on the court’s own motion;

22.  The Leave Application be dismissed.”

THIS APPEAL

9.  In his Notice of Appeal filed on 11 April 2025, the applicant stated that:

“The Decision made was unsatisfied and was totally unfair. The High Court Judge has favored only those of the Immigration and Appeal Board. I do not agree with all Decision made my case.” (sic)

10.  Contrary to the directions of the Registrar of Civil Appeals dated 11 April 2025, the applicant failed to lodge any written submissions.

DISCUSSION

11.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The court’s role is not to examine the decision maker’s decision afresh as if it were a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)]).

12.  In our view, the applicant’s appeal has no substance. At the outset, his assertions are all general, vague and bare which are not proper grounds of appeal.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  More importantly, he failed to identify any error with specific particulars against the Leave Decision.  Although he made serious allegations that the Judge favoured the Board and the Director, he has failed to condescend upon particulars to support them.  Accordingly, his assertions are not valid grounds of appeal and are wholly without merit.

13.  In any event, for completeness, we have considered the Leave Decision carefully and are unable to see any arguable ground of appeal against the Leave Decision.  We agree with the Judge’s observations and see no basis to disturb the Leave Decision.

14.  For the above reasons, the applicant’s appeal against the Leave Decision has no merit and is hereby dismissed.