RE REHIM ABDUL

CACV 604/2020

[2021] HKCA 826

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 604 OF 2020

(ON APPEAL FROM HCAL NO. 459 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 Bruno Chan 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 the Pakistan.  He entered Hong Kong illegally on 25 January 2014.  He was arrested and subsequently released on recognizance.  He later filed a non-refoulement claim.

2.2  The basis of the applicant’s claim is that he would be harmed or killed by one Usman and his subordinates from a rival political party.  There was also a personal dispute between Usman and the applicant.

3)  The Director’s Decisions

3.1  The Director of Immigration (‘the Director’) decided against the applicant’s torture claim on 24 February 2016.  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  The Director decided against the applicant’s right to life claim on 25 November 2016 (‘the Director’s Further Decision’).  The Director’s Further Decision covered Article 2 (right to life) of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’) on 7 March 2016.  After a hearing held on 18 January 2017, the applicant’s claim was dismissed by the Board on 12 March 2018 who had also considered the Director’s Further Decision which was handed down on 25 November 2016.

4.2  The Board held that out of the three incidents involving Usman and his men mentioned by the applicant, only two involved physical assault, where the applicant suffered only minor cut and scratches that required no medical attention.  There was no medical evidence to support the applicant’s alleged injury.  The applicant never reported the incidents to the local police.  There was indication that Usman had no intention to kill the applicant.  The risk of violence against the applicant was localized and internal relocation was possible.  Minimum level of severity was not established.

5)  Decision of the Judge

5.1  The applicant filed his Form 86 within time, seeking for leave for judicial review on 20 March 2018.  In his supporting affirmation, the applicant did not provide any grounds for leave for judicial review.

5.2  On 27 July 2020, the Judge held that the Board rejected the applicant’s case due to an adverse finding on his credibility after thorough and detailed analysis.  In the absence of error or procedural unfairness, there was no reasonable arguable basis to challenge the Board’s decision.   

6)  Grounds of appeal

6.1  Doing the best that we could read from the applicant’s notice of appeal, he stated that the Judge followed the decision of the Board and failed to show cause.

6.2  Doing the best that we could read from the applicant’s written submissions, the applicant repeated the facts of his case.  He alleged that the Director and the Board wrongly refused his claim and had they checked carefully they should not have.

6.3  In Court the applicant said that the leader of his party had fled the country and if he (i.e. the applicant) returns home, his life will be in danger.

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  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

7.3  We see no basis to disturb the Deputy Judge’s Decision.  Accordingly, the appeal is dismissed.