RE BUTT WAQAS ARIF

CACV 443/2018

[2019] HKCA 201

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 443 OF 2018

(ON APPEAL FROM HCAL NO. 121 OF 2018)

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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 by the applicant against the decision of Deputy High Court Judge Josiah Lam in which he refused to grant leave to the applicant to apply for judicial review.

2)  Factual background

2.1  The applicant is a national of Pakistan.  On 8 August 2009 he entered Hong Kong illegally by boat.  He raised a torture claim on 12 August 2009.

2.2  The basis of the applicant’s claim is that he would be killed by the Meher family because of a land dispute.  The applicant claims that the Meher family has political affiliations in Pakistan.

2.3  The background facts have been summarized in the decision of the Judge at [1]-[12].

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

3.1  The Director of Immigration (‘the Director’) decided against the applicant’s torture claim on 30 April 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’).

3.2  By a further decision of the Director of 14 June 2017, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant (‘Director’s Further Decision’).

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’) on 11 May 2015.  After a hearing held on 14 April 2016, the Board dismissed the applicant’s appeal on 12 January 2018 (‘the Board’s Decision’).

4.2  The Board found that the applicant was never subjected to any violence on his own case.  The Board found the applicant incredible for raising for the first time that his father was murdered only after the Director’s Decision was made and a notice of appeal was lodged to the Board.  He also found that the applicant’s purported land dispute with the Meher family was a private matter involving no convention reason.

5)  Decision of the Judge

5.1  During the hearing before the Judge, as the applicant complained about not having the chance to submit additional information regarding his BOR 2 claim, the Judge asked the applicant what more he would have submitted to the Director and the Board if there was an interview specifically arranged for him on BOR 2.  The applicant simply replied that his life was still in danger.  The applicant said he tried to submit a one‑page document in support of his BOR 2 claim.

5.2  The Judge, amongst other things, held that the Director’s Further Decision on BOR 2 risk cannot be read in isolation to the Director’s Decision.  He found that the applicant failed to provide additional information in support of his BOR 2 claim when he was invited to do the same.  He held that the applicant’s allegation of intending to submit a one‑page document, and that he had forgotten about the content of his one‑page document, was incredible and unproven.  The Judge does not accept that the applicant had anything more to submit regarding his BOR 2 claim.

6)  Grounds of appeal

6.  The applicant in the notice of appeal and in his written submissions focused his complaint on BOR 2. He stated that there was a lack of translation service and it impaired his ability to understand the Director’s Further Decision.  He stated that he was not given a chance for an oral hearing to make a BOR 2 claim case.  He repeated that what he already stated before the Judge, which was that he was not given a chance to submit additional information for his BOR 2 claim.  At the hearing of this appeal he repeated that he did not understand the content of the documents because they were in languages that he did not know.

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.  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]. 

7.2  The applicant’s case of language difficulties had been considered by the Judge at [41].  We agree with the Judge.  His alleged BOR 2 grounds had been considered by the Judge below: see the Decision of the Judge at [42] to [45].  The Director had previously requested the applicant to submit additional information for any claims he might wish to make in relation to BOR 2.  The applicant failed to submit the same.  In the absence of additional facts, the Director was entitled to proceed with its Director’s Further Decision based on the materials before him.  There is no basis for the applicant now to advance a case of BOR 2 independent of BOR 3 considerations.  There is no reasonably arguable basis to challenge the fairness of the process based on the absence of an additional interview.  If the applicant has valid grounds and particulars for his BOR 2 allegations, he has not demonstrated it before the Board or the Judge, not to mention he still has not demonstrated any of such grounds in this appeal.

7.3  Accordingly, the appeal is dismissed.