RE HALEEM MUHAMMAD

CACV 211/2021

[2022] HKCA 760

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 211 OF 2021

(ON APPEAL FROM HCAL NO. 2004 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) :

I. Leave to appeal to the Court of Final Appeal

1.  On 17 September 2021, this Court (Cheung JA and Lisa Wong J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge To given on 21 April 2021 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 October 2021, for leave to appeal against our judgment to the Court of Final Appeal.  The applicant stated in his notice of motion the following:

‘ The High Court dismissed my leave to apply for judicial review. The Court of Appeal too dismissed my leave to appeal. I do not agree with these two judgment. I did not get justice. To get justice I want to go to the Court of Final Appeal.’

4.  The applicant stated in his written submissions in summary the following points :  

(1.)  There was threat to life in his home country.

(2.)  The applicant’s enemies are strong, influential, politically powerful.

(3.)  No one was there to protect the applicant from his enemies.

II.  Our view

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.

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.

III.  Disposition

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

CACV 211/2021

[2021] HKCA 1304

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 211 OF 2021

(ON APPEAL FROM HCAL NO. 2004 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court)  :

I.  The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge To of 21 April 2021 in which he refused to grant leave to him to apply for judicial review.

II.  Factual background

2.  The applicant is a national of Pakistan.  According to the details of his passport, he last arrived in the Mainland on 10 July 2014.  He illegally entered Hong Kong on 23 July 2014 and remained in Hong Kong since.  On 25 July 2014, he applied for non-refoulement protection.

3.  The basis of the applicant’s claim is that he would be harmed or killed by his paternal uncles and their families due to land disputes.

4.  The background facts have been summarized in the decision of the Judge at [6]-[14].

III.  The Director’s Decision

5.  The Director of Immigration (‘the Director’)  decided against the applicant’s non-refoulement claim on 8 March 2018.  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’).

IV.  The Board’s Decision

6.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’)  on 19 March 2018.  After a hearing held on 31 May 2018, the Board dismissed the applicant’s appeal on 5 September 2018 (‘the Board’s Decision’).

7.  The Board found that the credibility of the applicant was not in issue and proceeded to deal with the claim on all applicable grounds.  The applicant was unable to satisfy all four applicable grounds for non-refoulement.  There was no sufficient evidence to establish any risk of severe ill treatment, pain or suffering upon the refoulement of the applicant, as no violence was ever inflicted on the applicant or his family members.  Effective state protection was available to the applicant but he did not avail himself of it.  Internal relocation was possible.  The applicant’s alleged fear does not arise out of the Convention Reasons which included race, religion, nationality, social group or political opinions.  It was unlikely for the alleged aggressors to take the risk of criminal sanction to kill the applicant.

V.  Decision of the Judge

8.  The applicant filed his Form 86 and supporting affirmation stating that he was not satisfied with the Board’s Decision.  He produced evidence not previously produced before the Board.

9.  The Judge held that it was futile for the applicant to dispute on the facts as the Board has already accepted the applicant’s credibility on factual matters.  The Board rejected the applicant’s case based on the applicable non-refoulement grounds.  There was no reasonably arguable basis to challenge the Board’s decision.  The Court was unable to find any error of law in the Board’s Decision.

VI.  Grounds of appeal

10.  The applicant in the notice of appeal stated that the Judge ‘failed to show any good cause’.

11.  In the applicant’s written submission, he recited the factual matters of his case.  He stated that his aggressors tried to kill him and relocation was not possible.

VII.  Our view

12.  We are of the view that the applicant’s submissions consist of 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].

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.

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

Applicant, unrepresented, appearing in person