RE BAIG MIRZA NOMAN

CACV 386/2020

[2021] HKCA 579

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 386 OF 2020

(ON APPEAL FROM HCAL NO 1923 OF 2018)

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J U D G M E N T

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Hon G Lam J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge K W Lung of 7 August 2020 in which he refused to grant leave to him to apply for judicial review in relation to his non‑refoulement claim.

2.  This appeal was scheduled to be heard on 20 April 2021.  Despite the directions contained in the letter from the High Court to the applicant dated 12 January 2021, the applicant failed to lodge any skeleton argument by the stipulated time.  Accordingly the hearing was vacated and we deal with this appeal on paper.

Factual background

3.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 11 July 2009.  Two days later he raised a non‑refoulement claim on all applicable grounds.

4.  The basis of the applicant’s claim is that he would be harmed or killed by his paternal uncle and his uncle’s son because of a dispute over the ownership of a family house.  The background facts have been summarized in the decision of the Deputy Judge at [5] of his decision set out in the CALL-1 Form as follows:

“ The applicant claimed that his father had inherited two houses. The one in dispute was vacant. In 2008, his paternal uncle came with 5 or 6 gangsters carrying AK47 guns. Uncle Mirza demand possession of the vacant house. His father refused. Uncle Mirza and his gangsters fired to the air to threaten them. They left and returned again shortly after the first attempt. This time, there was a fight and as a result, his father was injured. However, the applicant was not injured at all. In another day when the applicant was on his way to the farm where his father worked, he met uncle Mirza’s men. They fired shots at him. He ran away and was not injured. He moved to stay with his aunt. His father advised him to leave Pakistan. With the help of his friend, he paid an agent to leave Pakistan for [Mainland] China, from where he came to Hong Kong illegally.”

The Director’s Decision

5.  The Director of Immigration (“the Director”) decided against the applicant’s non‑refoulement claim on 17 February 2015.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk, as well as other statutory and convention rights against torture and persecution.

6.  The Director decided against the applicant’s right to life claim on 12 June 2017.  This further decision covered Article 2 (right to life) of the Bill of Rights.

The Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (“Board”) on 4 March 2015.  After a hearing held on 4 April 2018, the Board dismissed the applicant’s appeal on 27 April 2018.

8.  The Board found that the applicant’s alleged version of events was unreliable.  The Board found it did not make sense that the applicant would travel all the way to Hong Kong in fear for his life when the much more economical and reasonable alternative would have been to relocate within Pakistan.  Taking into account other evidence such as the applicant deciding to sneak into Hong Kong illegally, his failure to seek assistance while in Mainland China, his taking up work in Hong Kong illegally, the Board held that as the applicant’s evidence was unreliable he had failed to discharge his burden of proof.

Decision of the Deputy Judge

9.  The applicant applied on 13 September 2018, out of time, for leave to apply for judicial review.  His grounds for judicial review as stated in the attachment to his Form 86 were that, as summarised by the Deputy Judge, he would face ill‑treatment if refouled.  He also stated that the right under Article 3 of the Bill of Rights to freedom from cruel, inhuman and degrading treatment or punishment is absolute and non‑derogable.   

10.  The Deputy Judge held that merely referencing the relevant statutory provisions and convention is not enough.  Evaluation of evidence is within the province of the Board.  The applicant essentially only made certain assertions based on his personal opinion without any evidence in support.  The Deputy Judge therefore refused to extend time and dismissed the application. 

Grounds of appeal

11.  The applicant in the notice of appeal made a bare allegation that the decisions against him were unlawful.  He stated that the decisions failed to take into account many things and issues.  He stated that his life would be in danger in Pakistan so that he could not go back there.

Our view

12.  We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  His notice of appeal, as explained above, merely made certain unsubstantiated assertions against the decisions below.

13.  On this appeal it is incumbent on the applicant to point out with sufficient particularity the errors that the Deputy Judge made in assessing the Board’s decision.  This he has wholly failed to do.

14.  Accordingly, the appeal is dismissed.