RE KASHIF ANWAR

CACV 5/2019

[2019] HKCA 530

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 5 OF 2019

(ON APPEAL FROM HCAL NO. 795 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

1.1   This is an appeal by the applicant against the decision of Deputy High Court Judge K. W. Lung given on 24 December 2018 in which he refused to grant leave to the applicant to apply for judicial review against the decisions of the Director of Immigration and the Torture Claims Appeal Board.

1.2   The applicant did not comply with the directions of the Registrar of Civil Appeals of 28 January 2019 and did not lodge any skeleton submission.  The original hearing fixed for 7 May 2019 was hence vacated, and the applicant’s appeal is now being considered on paper.

2)  Factual background

2.1   The applicant is a national of Pakistan.  He entered Hong Kong illegally on 25 December 2015.  He raised a non‑refoulement claim on 12 January 2017.

2.2   The basis of the applicant’s claim is that he would be harmed or killed by his paternal uncles, who were supporters of the Pakistan Muslim League‑Q over a dispute of a family property.  The uncles have obtained the assistance from the intended buyers of the family property and have been harassing the applicant and his family.

2.3   The background facts have been summarized in the decision of the Judge at [11]-[12].

3)  The Director’s Decision

3.   The Director decided against the applicant’s torture claim on 30 June 2017.  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

4.1   The applicant appealed against the Director’s Decision to the Board on 13 July 2017.  After a hearing held on 18 September 2017, the Board dismissed the applicant’s appeal on 3 October 2017 (‘the Board’s Decision’).

4.2   The Board found that the uncles did not, in fact, intend to take the applicant’s life, as opposed to what the applicant believed.  The uncles could have instructed the intended buyers to kill him but they did not.  Upon assessment of the evidence, the Board found that the applicant himself admitted that the uncles’ purpose was only to threaten him, which contradicted the applicant’s allegation that his life was in danger.  The Board found that the applicant’s feared risk would be unlikely to materialize.

5)  Decision of the Judge

5.1   The Judge on 9 November 2018 dismissed the applicant’s application for leave for judicial review for want of prosecution as the applicant did not appear before the Judge on the scheduled date and time.  The applicant by summons applied to the Judge for leave to appeal to the Court of Appeal out of time.  The Judge ordered a new hearing to be held.  This time the applicant appeared before the Judge and explained his reasons for delay.  The Judge accepted the applicant’s explanation and considered the applicant’s application for leave for judicial review.

5.2   The Judge held that the applicant had failed to show exceptional circumstances to apply for judicial review against the Director’s Decision.  The Judge went on to consider the applicant’s various grounds of complaint against the Board.  The Judge held that in short, the applicant was simply unhappy with the Board’s decision.  There were no substantive grounds to challenge the Board’s Decision.  The Judge dismissed the applicant’s application for leave for judicial review.

6)  Grounds of appeal

6.   The applicant in the notice of appeal filed on 7 January 2019 essentially stated that the gravity of his case was not considered by the Judge.  He stated that he should be given the opportunity to plead his case.

7)  Our view

7.1   It is trite that in an appeal against a 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, the appeal should be dismissed : Re Litoun Mounsy [2018] HKCA 537 at [11]; Re Tutul [2018] HKCA 552 at [15]; and Re Islam Rafiqul [2018] HKCA 570 at [14].

7.2   The applicant has provided no viable grounds of appeal against the decision of the Judge.  The alleged grounds in the applicant’s notice of appeal are bare allegations.  There is no merit in the applicant’s appeal.

7.3   Accordingly, the appeal is dismissed.