RE ABBAS SYED MANZAR

CACV 99/2019

[2019] HKCA 960

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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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1)   Leave to appeal to Court of Final Appeal

1.1   On 21 June 2019, this Court handed down a judgment dismissing the applicant’s appeal 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 (‘Decision of the Judge’).

1.2   The facts and issues in the appeal before the Court of Appeal, as well as the Court’s reasons for dismissing it, are set out in our judgment.  We will not repeat them here.

1.3   The applicant now applies, by a notice of motion dated 28 June 2019, for leave to appeal against our judgment to the Court of Final Appeal.

1.4   The applicant complains that in respect of the Director’s Decision (as defined in our judgment) the judges did not apply the ‘principle of irrationality’ (Wednesbury unreasonableness) and the principle of procedural unfairness for ignoring that the Director’s Decision needs to give reasons.  He reiterated that the Judge did not apply the law properly and that there was procedural unfairness.  All of these complaints lacked any meaningful particulars.

1.5   The notice of motion was attached with a 2‑page letter to the Court and 26 pages of documents.  The 2‑page letter begins with the applicant regurgitating his background story to the Court.  He reiterated that he was being chased by other organizations that persistently hunt down the Shia sect which he belonged to.  He repeated that he will be killed if he was sent back and that the Court must trust him that he will be killed if he was sent back.

1.6   The 26 pages of documentary exhibits are information on threats against the Shia muslims, or alleged personal achievements, or references of the applicant as a poet.  Parts of the documents were disclosed before the Judge, while parts of the documents are new documents never shown to the Judge.

1.7   This is not an occasion for the applicant to regurgitate arguments either already advanced, or for him to advance new grounds not dealt with by the Judge.  We would only reverse the decision of the Judge if there were errors of law, that the Judge failed to take account of relevant matters, or the decision was plainly wrong: United Muslim Association of Hong Kong v Yusuf Yu[2018] HKCA 451 at [38] and [39].  None of these exist for these documents attached to his notice of motion.  We also do not see the documents only disclosed now can satisfy the 3 part test as laid down in Ladd v Marshall [1954] 1 WLR 1489.

2)  Legal principles

2. Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘HKCFAO’) leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

3)  Our view

3.1   The matters stated by the applicant in his notice of motion and attachments do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the HKCFAO.  Nor is there any such question apparent to us from the matters he has raised in his notice of motion and attachments.

3.2   We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

4)  Disposition

4.   For these reasons, the notice of motion dated 28 June 2019 is dismissed.

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.