RE MAHBOOB ALI SHAN

CACV 482/2020

[2021] HKCA 1434

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 482 OF 2020

(ON APPEAL FROM HCAL NO. 734 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) :

I. Leave to appeal to the Court of Final Appeal

1.  On 23 April 2021, this Court (Cheung JA, G Lam (as he then was) and S T Poon JJ) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 7 September 2020 in which he refused to grant leave to the applicant to apply for judicial review.

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

3.  The applicant now applies, by a notice of motion filed on 6 May 2021, for leave to appeal against our judgment to the Court of Final Appeal.  The applicant stated in his notice of motion that :

‘ I would like to inform court of Final Appeal. There is some error in my decision. I am totally disagree with the decision of authorities and court because they were totally relied on col information and my previous facts which were favor on reject my claim. Actual life occur different situation them mentioned col information. Because its toward to my life in my home land in Pakistan. I do not wish to go back to Pakistan because my life in danger in my country in Pakistan.’

4.  The applicant also lodged his written submissions.  He stated there was real procedural unfairness.  He stated he was not given opportunity to be heard.  There was unlawful fettering of discretion. There was irrationality in the public law sense.  Quick disposal of his case was discriminatory.  He stated that he did not know English and had a language handicap.  None of these are provided with particulars.

II.      Legal principles

5.  Under section 22(1)(b) of the HongKong Court of Final Appeal Ordinance (Cap. 484) (‘Ordinance’) 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.

III.     Our view

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

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

IV.     Disposition

8.  For these reasons, the notice of motion dated 6 May 2021 is dismissed.

CACV 482/2020

[2021] HKCA 553

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 482 OF 2020

(ON APPEAL FROM HCAL NO. 734 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 Bruno Chan of 7 September 2020 in which he refused to grant leave to him to apply for judicial review.

1.2.  This appeal was scheduled to be heard on 20 April 2021.  Despite the directions contained in the letter from the High Court to the applicant dated 25 January 2021, the applicant failed to lodge the skeleton argument by the stipulated time.  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 entered Hong Kong illegally on 20 June 2016.  On 23 June 2016, he applied for non-refoulement protection.

2.2.  The basis of the applicant’s claim is that he would be harmed or killed by family members of his girlfriend called Mehwish because they disapproved of the applicant’s friendship with Mehwish.

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

3)  The Director’s Decision

3.  The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 28 December 2016.  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 (‘the Director’s 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 13 and 26 January 2017.  After a hearing held on 13 February 2018, the Board dismissed the applicant’s appeal on 4 April 2018 (‘the Board’s Decision’).

4.2.  The Board found that Mehwish’s family members did not intend to seriously harm the applicant.  There was a period where the applicant was left alone after he did not seek to find Mehwish.  There was a lack of credibility for the applicant to rely on hearsay evidence from someone else over the telephone that Mehwish’s family members are now looking for him.  There was nothing in the evidence that Mehwish’s family members were politically affiliated.  The applicant did not seek for local police assistance.  The applicant’s version of events was unreliable.

5)  Decision of the Judge

5.1.  The applicant’s grounds for review as stated in his supporting affirmation before the Judge were solely that he believed that the decision was unfair and unreasonable.

5.2.  The Judge held that this was unsupported by any particulars or elaborations.  There was no indication of any error of law or procedural unfairness.  The Board rejected the applicant’s case based on detailed reasoning due to an adverse finding towards the applicant’s credibility.

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, and that he should have been given the opportunity to plead his case.

6.2.  In the applicant’s supporting affirmation, he stated that : ‘However, I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review’.  He requested the Court to exercise its discretion to allow him to appeal.

7)  Our view

7.1.  We are of the view that the above are all bare allegations without particulars or specifics.  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.