RE ALI MOZAM

CACV 375/2019

[2019] HKCA 1365

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 375 OF 2019

(ON APPEAL FROM HCAL NO. 2809 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”) given on 25 July 2019 refusing him leave to apply for judicial review.  The intended judicial review is against the decisions of the Director of Immigration (“the Director”) dated 6 March 2015 and 29 May 2017 rejecting his non-refoulement claim and the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 27 November 2018 dismissing his appeal against the Director’s decisions.    

2.  The applicant is a Pakistani national.  He entered Hong Kong illegally and was arrested by the police on 14 July 2008.  He lodged a torture claim on 21 July 2008, which was assessed as a non-refoulement claim upon the commencement of the unified screening mechanism in March 2014. 

3.  The applicant’s claim is based on his fear of being: (i) harmed or killed by the brothers and cousins of his girlfriend, Maria, who objected to their marriage; and (ii) persecuted by the Christian group as he refused to give up his Islamic faith to become a Christian.  His case was set out in details in [10] of the Director’s first decision and summarised by the Board in [18] to [31] of the Board’s decision.  In gist, the applicant and Maria were respectively from a Muslim and a Christian family.  When their relationship was discovered in 2005, Maria’s brothers and cousins demanded the applicant to change his religion to become a Christian, but he refused.  On the other hand, Maria was contemplating to convert to become an Islam.  On 26 January 2006, Maria’s brothers and cousins interrupted the marriage ceremony of the applicant and Maria in a local Mosque.  A scuffle broke out, during which the applicant was beaten up with wooden sticks, resulting in swellings and bruises to his head and legs.  A report was made to the police, but to no avail.  Maria’s family brothers and cousins threatened to kill the applicant if he did not leave Maria.  Fearing for his safety, the applicant left Pakistan in May 2006, and eventually sneaked into Hong Kong.       

4.  By his two decisions, the Director rejected the applicant’s claim having regard to the torture risk[1], persecution risk[2], BOR 3 risk[3] and BOR 2 risk[4] grounds.

5.  The applicant appealed the Director’s decisions to the Board, which heard the appeal on 25 June and 7 September 2018.  By its decision, the Board dismissed the appeal.  For the reasons set out in [34] to [50] of the decision, the Board found there was no basis for the applicant’s fear.  It considered that the attack was an isolated incident with no elements of state involvement, and the injuries sustained did not attain the minimum level of severity that would bring it within any of the applicable grounds.  The Board further pointed out that with his departure from the country, the applicant had left Maria, and her brothers and cousins had no reason to pursue him anymore.  The Board also did not accept the applicant’s fear of being persecuted by Christians, noting that Christians were a 2% minority in Pakistan, in contrast to the overwhelming 95% to 98% majority of the Muslim population.  The Board concluded that the applicant failed to establish a case in respect of any of the applicable grounds. 

6.  The applicant filed his Form 86 together with a supporting affirmation on 10 December 2018 seeking leave to apply for judicial review against the decision of the Board. 

7.  The applicant put forward the following grounds for seeking relief:

(1)  The Director and the Board failed to apply the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Treatment of Punishment – General Comment No. 2 which requires a national state to conduct sufficient due diligence to ensure the reforms and means of relief introduced must be effective.

(2)  The Director and the Board failed to conduct sufficient inquiry into the relevant country of origin conditions.

(3)  The Director and the Board failed to give reasons for their conclusions that there was insufficient basis to support the applicant’s claim under BOR 3 risk ground. There was no basis for the conclusion that the applicant would not be at risk of being subjected to torture and/or cruel, inhuman or degrading treatment upon refoulement.

(4)  The Director and the Board failed to take into consideration the applicant’s psychological strain and the death threats he faced.

8.  At the applicant’s request, the leave application was listed for hearing on 25 July 2019.  The applicant was absent at the hearing, whereupon the Judge dismissed the leave application for want of prosecution without giving consideration to the merits of the leave application.  In the Form CALL-1 dated 25 July 2019, [2019] HKCFI 1873, the Judge referred to Re Ahmed Syed Rafiq [2018] HKCA 178 at [12] and Choy Bing Wing v President of Hong Kong Institute of Engineers (HKIE), unrep., CACV 172/2013, 19 February 2014 at [15] in support of his dismissal of the application for want of prosecution.  The Judge also directed that the applicant may apply to set aside the order under Order 32, rule 6 of the Rules of the High Court, Cap. 4A.      

9.  The applicant filed a notice of appeal on 14 August 2019, in which he gave the following as the ground of appeal:

“I am late and absent [at] my judicial review hearing because I did not [receive] any letter in my address. I did not [receive] any hearing letter on decision in my address.”

10.  In his written submission, the applicant argued that: (i) the Director and the Board failed to make sufficient inquiries into the country of origin conditions of his claim, and were in breach of the high standard of fairness; (ii) the Director and the Board failed to take into account the fact that he would face real risk upon being refouled to his home country; and (iii) his claim was not a personal or private dispute, and his enemies could track him down wherever he was in Pakistan.           

11.  We heard the appeal on 3 December 2019.  At the hearing, other than explaining that he did not receive the previous letters from the court because the key of the letter box was kept by a neighbour who was out of Hong Kong, the applicant had nothing to add.

12.  In respect of the matter raised in the notice of appeal and the applicant’s absence at the hearing of the application, this Court has held in Re Abdus Salam [2019] HKCA 1091 at [14] to [25] that an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application; the correct approach is to treat the applicant as having withdrawn his request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.  Accordingly, the Judge was wrong to have dismissed the leave application merely because the applicant was absent at the oral hearing of the leave application. 

13.  In line with the approach in Re Abdus Salam, we will proceed to consider the merits of the application for leave to bring judicial review proceedings, as there would be no point in allowing the appeal and remitting the matter to the Court of First Instance if there is no merit in the judicial review application.     

14.  For the reasons given below, we are of the view that the intended judicial review has no prospect of success.  First, the appeal to the Board and the decision of the Board had superseded the decisions of the Director, and the present case discloses no exceptional circumstances that justify the applicant bringing a judicial review of the Director’s decisions: see Re Moshsin Ali [2018] HKCA 549.  Second, with regard to the Board’s decision, the applicant’s complaints in the proceedings below and in this appeal are general and unspecific.  The applicant has not identified what are the relevant matters and country of origin information that the Board had overlooked.  Having reviewed the applicant’s claim and the Board’s decision, we do not agree that the Board failed to give reasons for not accepting that the applicant would face risks of harm if he were to return to Pakistan.  We also do not discern any error of law, irrationality or procedural unfairness in the Board’s reasons and the process by which the decision was made.      

15.  Accordingly, the application for leave to apply for judicial review has no merits.  In the circumstances, it would be futile to allow the appeal and remit the leave application for the Court of First Instance for determination.  We therefore dismiss the appeal.

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[4] This refers to the risk of violation of the right of life under article 2 of the Hong Kong Bill of Rights Ordinance.