RE ABUZAR

CACV 438/2023, [2024] HKCA 369

On Appeal From [2023] HKCFI 3294

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 438 OF 2023

(ON APPEAL FROM HCAL NO. 255 OF 2021)

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JUDGMENT

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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 of 18 December 2023 in which he refused to grant leave to him to apply for judicial review.  The applicant did not attend Court and we will deal with his appeal on paper.

2)  Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong illegally by boat on 28 October 2019.  He made a non-refoulement claim by written representation on 19 November 2019 and 18 December 2019[1].

3.  The basis of the applicant’s claim is that he would be harmed or killed by the family of his ex-girlfriend Nadia and the village head named Hamza Khan due to their objection to the applicant’s relationship with Nadia and the defamation that it causes to Nadia’s family[2].

4.  The applicant is not affiliated with any political organization.  He is not married and has no children.  He came to know a girl named Nadia in a wedding.  At the end of 2018, the applicant proposed to Nadia.  Nadia’s family became angry about it because the applicant comes from a poor family.  The two continued to see each other despite the objection.   On one occasion, the brother of the village head, Hamza, threatened to kill the applicant, but left the scene after he made the threat.  On another occasion, the applicant heard gun shots firing from behind his back but the shots did not hit him.  The applicant ran back to his home but the purported shooters did not chase him.   The applicant did not know the shooters’ identities.  He suspected that they were sent by his girlfriend’s family.  He did not report to the police.  The applicant left his home for Islamabad and stayed at a friend’s place for a month and nothing happened during that period.  The applicant then applied to leave for China.  He had no problem in so doing with the authorities[3].

5.  The background facts have been summarized in the decision of the Judge at [2] to [6].

3)  The Director’s Decision

6.  The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 20 May 2020.  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[4]  (‘the Director’s Decision’).

4)  The Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’) on 28 May 2020.  After a hearing held on 29 October 2020, the Board dismissed the applicant’s appeal on 5 February 2021 (‘the Board’s Decision’).

8.  The Board found that the applicant did not produce any evidence to support his belief that should he return to Pakistan he would be unable to live anywhere else in Pakistan.  It was found that since the applicant departed Pakistan more than a year ago, it would be difficult for Nadia’s family to continue to hold any further interest to harm the applicant.  The applicant was able to live in Islamabad for one month untroubled.  Hamza’s brother did nothing after making a threat.  The fact that no action was taken is reflective that there was no real intention to carry out the threats.  There was no physical harm to the applicant’s family members.  The two purported shooters did not pursue the applicant after the shooting sounded from behind the applicant.  The applicant also did not leave his village immediately after the purported shooting.   The purported dispute was private in nature and did not involve the state.  The applicant encountered no difficulty in leaving Pakistan.  It was not considered that there is a high risk of harm if the applicant is to return to Pakistan[5].

5)  Decision of the Judge

9.  The applicant filed his Form 86 and affirmation containing no grounds to apply for leave for judicial save for repeating his case as before that he will be killed by his enemy.  The Judge held that without proper ground for the intended challenge, and without being able to show any before the hearing in Court, there was no error of law or procedural unfairness in the Board’s Decision.  There was no reasonably arguable basis for the intended challenge[6].  The Judge held that the applicant had conceded he had since ceased his relationship with Nadia and there was no reason for her family to pursue him.  It was a private dispute without official involvement.  State protection and internal relocation are available.

6)  Grounds of appeal

10.  The applicant in the notice of appeal referred his attachments as representing his affirmation and written submission.

11.  In brief, he stated the following :

(1)  The fact that there are separate decisions made at different times does not mean that he should not be entitled to appeal against those decisions;

(2)  The Director and the Adjudicator did not take into account his unique situation;

(3)  For high standard of fairness he should be given every reasonable opportunity to establish his claim;

(4)  The Director and the Board made a number of critical errors;

(5)  The Director and the Board failed to make a specific assessment of risk of harm that he would face;

(6)  The mere presence of legal counsel at Director stage does not guarantee that the specific risk had been properly considered;

(7)  He is quite certain that he will be killed if refouled;

(8)  The Director and the Board erred by relying on their own world view;

(9)  In deciding to refuse to allow the applicant to apply for judicial review of the Board’s Decision, the Judge did not meet the high standard of fairness.

7)  Our view

12.  We are of the view that the applicant’s complaints consist of bare allegations without particulars or specifics.  The 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 that the decision was otherwise plainly wrong : see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

13.  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.  None of the arguments raised by the applicant shows the Deputy Judge has made any error of law.

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