Case Detail

HANIF WAQAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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[2021] HKCA 430-EN-2021-04-01

HANIF WAQAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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CACV 299/2020

[2021] HKCA 430

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 299 OF 2020

(ON APPEAL FROM HCAL NO 1836 of 2018)

________________________

BETWEEN
	HANIF WAQAR	Applicant (Appellant)
	and
	TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

________________________

Before: Hon Cheung JA, B Chu and S T Poon JJ in Court

Date of Written Submission: 19 February 2021

Date of Judgment: 1 April 2021

________________

JUDGMENT

________________

Hon S T Poon J (giving the Decision of the Court):

1. On 29 January 2021, this Court handed down our judgment^{^[1]} (the “Judgment”) dismissing the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung given on 13 July 2020 refusing leave to apply for judicial review. The applicant had sought judicial review of the decision of the Torture Claims Appeal Board dismissing his appeal from the decision of the Director of Immigration rejecting his non-refoulement claim.

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 the Judgment. We will not repeat them here.

3. On 8 February 2021, the applicant filed a notice of motion to apply for leave to appeal against our judgment to the Court of Final Appeal. He also lodged a written submission to support his application.

4. Having considered the applicant’s notice of motion and written submissions, we see no reason to depart from the usual practice of determining applications of this kind on paper without a hearing.

5. As best as we can understand from the applicant’s handwriting, the applicant stated in his notice of motion that we did not apply principles of irrationality and procedural unfairness. These are all bare assertions of the applicant without any particulars as to how they relate to the applicant’s case.

6. In the applicant’s written submissions, he cited case authorities and judicial review principles without focusing on any particulars of the circumstances of his case. There was no allegation of error in the decision of the Judge.

7. Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision. Here, the applicant’s notice of motion and written submissions do not properly identify any error in our judgment, let alone any question of great general or public importance. The hurdle for obtaining leave to appeal to the Court of Final Appeal is not met. Nor is there any reason for leave to be given under the “otherwise” ground in section 22(1)(b).

8. Accordingly, we dismiss the applicant’s notice of motion.

(Peter Cheung)	(Bebe Pui Ying Chu)	(S T Poon)
Justice of Appeal	Judge of the	Judge of the
	Court of First Instance	Court of First Instance

The applicant, unrepresented, acted in person.

[1][2021] HKCA 128

CACV 299/2020

[2021] HKCA 128

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 299 OF 2020

(ON APPEAL FROM HCAL NO 1836 OF 2018)

________________________

BETWEEN

	HANIF WAQAR	Applicant (Appellant)
	and
	TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

________________________

Before: Hon Cheung JA, B Chu and S T Poon JJ in Court

Date of Hearing: 26 January 2021

Date of Judgment: 29 January 2021

________________________

J U D G M E N T

________________________

Hon S T Poon J (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 K.W. Lung 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 Pakistan. On 21 September 2014, he entered Hong Kong illegally by boat. He was arrested by the police on 30 April 2015 and raised his non-refoulement claim on 2 May 2015.

2.2 The basis of the applicant’s claim is that he would be harmed or killed by a person named Ikhlaq or by someone on his behalf so as to threaten the applicant’s father to transfer his ownership of a piece of land to Ikhlaq’s son.

2.3 The background facts have been summarized by the Judge in the Form Call-1[1] at [4]-[6].

3) The Director’s Decision and the Director’s Further Decision

3.1 The Director of Immigration (“the Director”) decided against the applicant’s torture claim on 31 July 2015. 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 By a further decision of the Director on 26 May 2017, the Director also assessed BOR 2 (right to life) risk in respect of the applicant and decided against the applicant (“Director’s Further Decision”).

4) The Board’s Decision

4.1 The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (“the Board”) on 12 August 2015. After two hearings held on 11 August 2017 and 6 September 2017, the Board dismissed the applicant’s appeal on 22 August 2018 (“the Board’s Decision”).

4.2 The Board found that the general credibility of the applicant was doubtful. While alleging that his father had documents of title to land, the applicant failed to submit any such document to support the allegation. The Board also found that the applicant’s assertion that the police did not act on his report was a mere speculation. His alleged political affiliation was also vague. Besides, the applicant submitted some documents purportedly supporting his case but those documents bore the name of another person which have no relevance to his case.

5) Decision of the Judge

5.1 At the hearing before the Judge, the applicant confirmed that he was free to express himself before the Immigration Department and the Board. The applicant also confirmed that the Director’s Decision, the Director’s Further Decision and the Board’s Decision were explained to him respectively by his lawyer and friend.

5.2 The Judge noted that the Board rejected the applicant’s evidence based on his finding of facts against the applicant. He held that there was no factual basis to support the applicant’s claim and he identified no error of the Board in arriving at its decision.

6) Grounds of appeal

6.1 The applicant stated in the notice of appeal that the gravity of his case was not weighed or realized by the Director or the Board and that he should be given an opportunity to plead his case. In his supporting affirmation, he stated that a good ground of appeal is not considered at the application for leave for judicial review stage.

6.2 In his written submission filed on 29 December 2020, the applicant referred to several legal authorities on non-refoulement claims and mentioned some general principles without specifying how those principles related to his case.

6.3 At the hearing, the applicant said he has a bullet inside his leg and he has medical records to prove that. He asked this court to allow him to stay in Hong Kong.

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. The applicant has failed to do so.

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

(Peter Cheung)	(Bebe Pui Ying Chu)	(S T Poon)
Justice of Appeal	Judge of the Court of First Instance	Judge of the Court of First Instance

The applicant, unrepresented, appearing in person

[1] [2020] HKCFI 1539