RE ABBAS SYED MANZAR

CACV 99/2019

[2019] HKCA 700

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 99 OF 2019

(ON APPEAL FROM HCAL NO. 1092 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

1.1  This is an appeal by the applicant against the decision of Deputy High Court Judge K. W. Lung given on 15 February 2019 in which he refused to grant leave to the applicant to apply for judicial review.

1.2  This appeal was scheduled to be heard on 18 June 2019.  Despite the directions contained in the letter from the High Court to the applicant dated 19 March 2019, the applicant failed to lodge the skeleton argument by 21 May 2019.  Accordingly the hearing was vacated and we will deal with this appeal on paper.

2)  Factual background

2.1  The applicant is a national of Pakistan.  On 24 July 2014, he entered Hong Kong illegally from the Mainland.  On 27 July 2014, the applicant was arrested by the Police for illegal remaining.  He raised a non-refoulement claim on 31 July 2014.

2.2  The basis of the applicant’s claim is that he would be harmed or killed by other sectarian groups because he belonged to the Shia Muslim Sect and the Pakistan Muslim League(Q) (‘PML(Q)’).  He is a high profile Shia religious scholar, activist and poet.

2.3  The background facts have been summarized in the decision of the Judge at [2] to [3].

3)  The Director’s Decision

3.  The Director decided against the applicant’s torture claim on 24 February 2017.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), Bill of Rights Article 2 (risk of 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.  After a hearing held on 8 February 2018, the Board dismissed the applicant’s appeal on 4 April 2018 (‘the Board’s Decision’).

4.2  The Board found that the applicant was not a witness of truth and that he has fabricated his claims in relation to his high profile as a Shia poet, scholar and activist fighting for the rights of the Shia minority.  The Board rejected the applicant’s country of origin arguments.  There was no real risk of harm that the applicant will face if he was to return to his home country.

5)  Decision of the Judge

5.  The Judge held that the applicant’s complaints regarding lack of consideration of state acquiescence, country of origin information, and other grounds were irrelevant as in any event, the Board did not find the applicant to be credible.  It was for the applicant to prove his case in which he did not.  He failed to explain what kind of evidence he wanted to produce. 

6)  Grounds of appeal

6.1  The applicant in the notice of appeal stated that the gravity of his circumstances has not been weighed or realized.  He complained that he should be given the opportunity to plead his case.

6.2  The applicant in his supporting affirmation gave bare assertions that there are good grounds of appeal.  He also complained that the Judge failed to consider his arguments but did not give any further explanation.  He attached a 2‑page document, alleging it to be his ‘story’, that is written in Urdu without any accompanying English or Chinese translation.

6.3  On 17 June 2019, the Court obtained the English translation of the applicant’s 2‑page document from the Court Language Section.  The applicant states that people in the Shia community were being threatened, killed and targeted by other Muslims sects.  The applicant emphasizes that his only fault is that he belongs religiously to the Shia community.  He firmly believes that if he was refouled, he will be killed even though he is just a peace-loving poet.

7)  Our view

7.1  We are of the view that the applicant’s appeal is without merits.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Board had already found that the applicant fabricated his case and the Judge held that it was for the Board to make factual findings.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors of 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  None of these errors exists in this case.

7.3  Further, in respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: see Re Daljit Singh [2018] HKCA 328; Re Qadir Sher [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41]. 

7.4  Accordingly, the appeal is dismissed.