RE HUSSAIN MUNAWAR

CACV 110/2019

[2019] HKCA 933

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 110 OF 2019

(ON APPEAL FROM HCAL NO. 1100 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 2 July 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 22 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 10 July 2019, for leave to appeal against our judgment to the Court of Final Appeal.

1.4   The applicant stated in the notice of motion that :

‘ I would like to inform court there is some error in law in my decision. Decision maker just relied on col information and my previous farts which were favor on rejected my claims Actual life occur different situation then mentioned col information. officer and Courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining. The decision is betray a bias and formula approch unlikely fairly access the danger of my life and clearly calcute to reject my claims.’

1.5   The applicant’s written submission is a pro forma document that is commonly used in application to a Judge of the Court of First Instance for leave to apply for judicial review.  It first stated the applicant’s background, dividing his background story into four incidents.  Then, it sets out grounds for judicial review.  They are all complaints against the Director and the Board.

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 written submission 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 written submission.

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 10 July 2019 is dismissed.

CACV 110/2019

[2019] HKCA 744

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 110 OF 2019

(ON APPEAL FROM HCAL NO. 1100 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 22 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 27 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.  He came to Hong Kong through the Mainland.  On 20 June 2015, the applicant was arrested by the Police for illegal remaining.  He raised a torture claim on 24 June 2015.

2.2   The basis of the applicant’s claim is that he would be harmed or killed by members of the Pakistan Muslim League (N) (‘PML(N)’) due to his being a supporter of the rival Pakistan Tareek-e-Insafe Party and his refusal to join PML(N).

2.3   The background facts have been summarized in the decision of the Judge at [3].

3)  The Director’s Decision

3.   The Director decided against the applicant’s torture claim on 14 November 2016.  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 2 February 2018, the Board dismissed the applicant’s appeal on 24 May 2018 (‘the Board’s Decision’).

4.2   The Board accepted that the applicant’s account of events was credible.  However it found that there was a low intensity and low frequency of past ill-treatment from PML(N) members, and that such future risk is low.  The applicant was not harmed.  The Board found that as the applicant was caught by PML(N) members a number of times, the chances of him being harmed or killed by now is low.  There is no real risk that the applicant would be harmed by PML(N).  The Board found that state protection was available in Pakistan, and that internal relocation was possible.

5)  Decision of the Judge

5.   The Judge addressed the grounds relied upon by the applicant.  The Judge held that during the hearing before the Board, the applicant had the assistance of an interpreter.  He understood the contents of the hearing bundle.  There was no absolute right of legal representation at all stages of the proceedings.  The applicant failed to explain the reason why country of origin information relied on by the Board was unreliable.  There was no procedural irregularity with the Immigration Department’s assessment of the applicant’s BOR 2 claims. 

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 made 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. 

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 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].  None of these errors exists in this case.

7.2   Accordingly, the appeal is dismissed.