RE HUSSAIN KHALID

CACV 476/2021

[2022] HKCA 1582

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 476 OF 2021

(ON APPEAL FROM HCAL NO. 2897 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.  On 14 April 2022, this Court handed down judgment ([2022] HKCA 523)  dismissing the applicant’s application to appeal an order of Deputy High Court Judge P Li given on 4 October 2021 refusing his application for leave to apply for judicial review in respect of his non-refoulement claim.

2.  On 17 May 2022, the applicant filed a notice of motion and affirmation applying for leave to appeal this Court’s order to the Court of Final Appeal out of time.  The applicant also lodged written submission within time.

3.  Having considered the applicant’s documents, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have, therefore, proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  Section 24(2)  of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’) (Cap. 484)  provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Section 24(5)  further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

6.  The applicant’s present application is out of time by five days.  The applicant did not explain in the supporting affirmation his delay, but simply said that the notice of motion was out of time.

7.  As to the merit of the intended appeal, section 22(1)(b)  of the HKCFAO provides that 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.

8.  The notice of motion stated :

‘ THE HIGH COURT AND THE COURT OF APPEAL DISMISSED MY LEAVE TO APPLY FOR JUDICIAL REVIEW BUT I WISH THE COURT OF FINAL APPEAL WILL CONSIDER MY LEAVE TO APPLY FOR JUDICIAL REVIEW.’

9.  The applicant’s written submissions complained of fears for his life, the applicant’s own country having poor law and order, the tribunals and courts in Hong Kong had dismissed his claim, and asylum seekers in Hong Kong having similar problems like that of the applicant.  He wished to go to the Court of Final Appeal on behalf of the other asylum seekers.

10.  We are of the view that the grounds and arguments put forward by the applicant are devoid of merit.  They do not constitute viable grounds for giving leave to appeal.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b)  of the HKCFAO.

11.  Nor do we see any basis for the ‘or otherwise’ limb under section 22(1)(b).

12.  As the statutory requirements for giving leave to appeal are not met, the intended appeal has no merit and there is no basis for us to extend the time for the filing of the notice of motion. Accordingly, we dismiss the notice of motion.

The applicant, unrepresented, acting in person

CACV 476/2021

[2022] HKCA 523

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 476 OF 2021

(ON APPEAL FROM HCAL NO. 2897 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.  The appeal

1.  This is an appeal against the decision of Deputy High Court Judge P Li of 4 October 2021 refusing to grant leave to the applicant to apply for judicial review against the decisions of the Torture Claims Appeal Board (‘the Board’).  The applicant agreed to have the appeal disposed of on paper without an oral hearing.

II.  Factual background

2.  The applicant is a national of Pakistan.  He arrived in Guangzhou on the Mainland on 27 February 2012 and stayed in Shenzhen for over a year until he illegally entered Hong Kong on 31 July 2013.  He was arrested by the Police on 3 September 2013 and was released on recognizance on 18 October 2013.  On 4 September 2013, he applied for non-refoulement protection.

3.  The basis of the applicant’s claim is that he would be harmed or killed by supporters of a rival political party known as the Pakistan Peoples Party in his home country.

4.  The details of the applicant’s claim have been summarized by the Judge at [3]-[7] of the CALL‑1 Form.

III.  The Director’s Decisions

5.  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 2 November 2015.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), as well as his other statutory and convention rights against torture and persecution (‘the Director’s Decision’).  By a further decision dated 22 February 2017, the Director dismissed the applicant’s claim under Article 2 (right to life) of the Bill of Rights (‘BOR 2’) (‘the Directors’ Further Decision’). 

IV.  The Board’s Decisions

6.  The applicant appealed against the Director’s Decision to the Board and a hearing was held on 27 July 2016.  The Board dismissed the applicant’s appeal against the Director’s Decision on 16 November 2016.  The Board found that the applicant’s evidence was inconsistent.  In particular, the applicant’s evidence was self‑contradictory as he was even unable to recall which political party he was supporting.   The Board was of the view the applicant was not a credible witness and found that the applicant’s claims were fabricated (‘the Board’s Decision’).

7.  As for the Director’s Further Decision on 22 February 2017, the applicant appealed out of time.  The Board accepted the late filing of the applicant’s appeal.  However, it found there was no fact or matter which would alter the Board’s view on the applicant’s credibility or show that there might be a real or genuine chance of him suffering harm warranting non‑refoulement protection if he returned to Pakistan.  Therefore, the Board dismissed the applicant’s appeal against the Director’s Further Decision on 14 December 2018 (‘the Board’s Further Decision’).

V.  Decisions of the Judge

8.  The applicant filed a Form 86 with a supporting affirmation.  No grounds were provided on his Form 86.  In his affirmation, he merely annexed the copies of the decisions of the Director on 2 November 2015 and the Board on 14 December 2018.  As the applicant did not request for an oral hearing, the Judge decided the application on papers.

9.  Although the applicant stated that the challenge was against the Director’s Decision of 2 November 2015 and the Board’s Decision of 14 December 2018, the Judge had correctly regarded that challenge was against the two Board’s Decisions.  The Judge held that the Board was under a duty to make finding on the facts and the credibility of the applicant.  This decision would not be interfered with by the Court unless there was an error in law and procedure.  In the absence of such error, the Board’s Decisions were rational and the Judge was of the view there was no reasonable prospect of success in the leave application.  Therefore, the applicant’s application was dismissed.     

VI.  Grounds of appeal

10.  The applicant in his notice of appeal stated the following :

‘ I want to quash the decision of the High Court.

The High Court did not find any error of proceding [sic] of Torture Claims Appeal Board.  The decision of the Board is full of error. Please quash my result given by the High Court.’

11.  In the applicant’s written submissions, the applicant reiterated that he would be killed by the rival political party if he was returned to his home country. He pleaded for the Court to grant him leave to appeal.    He stated that as a grass root worker, the media would not cover his story.  He again complained that the Director rejected his non-refoulement claim.  

VII.   Our view

12.  We are of the view that the applicant’s submissions consist of bare allegations without particulars or specifics and his appeal is simply without merits.  The applicant provided no reasonably arguable grounds for judicial review. 

13.  As this Court has previously stated, 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].

14.  It is, thus, incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in assessing the Board’s Decision.

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