RE FAROOQ AHMED

CACV 373/2018

[2018] HKCA 1006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 373 OF 2018

(ON APPEAL FROM HCAL NO. 789 OF 2017)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court) :

1)  The appeal

1.1  This is an appeal against the decision of Honourable Mrs Justice Campbell-Moffat who refused to grant leave to the applicant to apply for judicial review against decisions of the Director of Immigration (‘the Director’) and the Torture Claims Appeal Board (‘the Board’).

1.2  The applicant did not comply with the directions of the Registrar of Civil Appeals dated 20 September 2018 and did not lodge any skeleton submission.  The original hearing fixed for 21 December 2018 was hence vacated, and the applicant’s appeal is now being considered on paper.

2)  Background

2.1  The applicant is a national of Pakistan.  He first arrived in Hong Kong legally on 4 June 2003 and overstayed.  He lodged a torture claim on 3 February 2008.  On 23 November 2009, he withdrew his claim.  He was later sentenced to one month imprisonment for breach of condition of stay.  He was repatriated to Pakistan on 24 February 2010.  On 13 August 2015, he entered Hong Kong again by boat illegally.  His non-refoulement claim form was submitted on 12 December 2016.

2.2  He lodged the non-refoulement claim on the basis that if he returned to Pakistan, he would be harmed or killed by members of the Choudry family, who are politically influential in Pakistan.

2.3  The details of the applicant’s claim have been summarized by the Judge at [5] to [7] of the CALL-1 Form.

3)  The Director’s Decision

3.  The Director of Immigration decided against the applicant’s torture claim on 24 January 2017.  The Director’s Decision covered the applicant’s rights under Article 2 (right to life) (‘BOR 2’) and Article 3 (right against torture and cruel and inhuman treatment etc) (‘BOR 3’) of the Bill of Rights as well as his other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s decision to the Board on 3 February 2017.  After a hearing held on 1 August 2017, the Board dismissed the appeal.

4.2  At the hearing of the Board, the applicant requested for his case to be decided on the basis of the information in the hearing bundle alone.  The Board told the applicant there were questions that it wanted to ask him, and if he chose not to answer these questions, it might result in the Board confirming the Director’s decision.  The applicant indicated that he understood and maintained that he wished to rely on the hearing bundle alone.  He did not want to answer any Board questions.

5)  Decision of the Judge

5.1  The applicant filed a Form 86 with supporting affirmation seeking leave for judicial review against the decisions of the Director and the Board.  The Judge dismissed the application on 3 August 2018.

5.2  The applicant did not provide any grounds for review before the Judge.  The Judge nevertheless considered the papers carefully.  She held that no error of law or procedure could be found.  The Board gave an opportunity for the applicant to explain his case which was declined by him.  The Judge found no arguability in the applicant’s case.  There was no reasonable prospect of success and leave for judicial review was refused.

6)  Notice of Appeal

6.  The applicant simply stated in his Notice of Appeal that it was not safe for him to return to Pakistan.  He asks the Court to allow him to stay in Hong Kong until his problems are solved.

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 grounds of appeal against the decision of the Judge.  There is no merit in the applicant’s appeal.  Accordingly the appeal is dismissed.