RE PERVEZ MUHAMMAD

CACV 99/2021

[2021] HKCA 1658

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 99 OF 2021

(ON APPEAL FROM HCAL NO. 221 OF 2019)

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D E C I S I O N

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Hon B Chu J (giving the Decision of the Court) :

1)  Leave to appeal to Court of Final Appeal

1.1   On 11 August 2021, this Court handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge CP Pang of 4 March 2021 in which he refused to grant leave to the applicant to apply for judicial review.

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 11 October 2021 (“Notice of Motion”), for leave to appeal out of time, against our judgment to the Court of Final Appeal.

1.4   The applicant stated in his affirmation of 11 October 2021 that he applied for the Notice of Motion to be filed out of time and asked the Court to accept his notice.  No reason nor explanation was given at all for his delay.

1.5   Pursuant to Practice Direction 2.1, the applicant should on or before 25 October 2021 lodge with the Court his written submissions to support his Notice of Motion.  He lodged his submissions only on 27 October 2021 without explaining why he was late.

1.6   The applicant has stated in his Notice of Motion that he wants to go to the Court of Final Appeal as there were many errors in the High Court decision and his appeal was dismissed by the Court of Appeal.  

1.7   In his written submissions, he repeated his claim that workers for his opposition political party Pakistan Muslim League (Newaz) wanted to kill him and that was why he came to Hong Kong and applied for non-refoulement.  

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 his submissions 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 what is stated by the applicant in the Notice of Motion and his submissions. 

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 11 October 2021 is dismissed.

CACV 99/2021

[2021] HKCA 1183

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 99 OF 2021

(ON APPEAL FROM HCAL NO. 221 OF 2019)

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J U D G M E N T

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Hon B Chu J (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 C P Pang of 4 March 2021 in which he refused to grant leave to him to apply for judicial review.

1.2  This appeal was scheduled to be heard on 2 August 2021.  Despite the directions contained in the letter from the High Court to the applicant dated 3 June 2021, the applicant failed to lodge the skeleton argument by the stipulated time.  Accordingly the hearing was vacated by the Court’s letter to the applicant dated 8 July 2021, and we will deal with this appeal on paper.

2)  Factual background

2.1  The applicant is a national of Pakistan. He was arrested by the police on 26 August 2015. He claimed that he departed from Pakistan on 21 August 2015 for Mainland China and then came to Hong Kong illegally by boat on 26 August 2015. He subsequently on 30 August 2015 applied for non‑refoulement protection.

2.2  The basis of the applicant’s claim is that he would be harmed or killed by members of the Pakistan Muslim League because he refused to leave his political party to join them.

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

3)  The Director’s Decision

3.  The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 18 April 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’).

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’) on 2 May 2018.  After a hearing held on 30 November 2018, the Board dismissed the applicant’s appeal on 14 January 2019 (‘the Board’s Decision’).

4.2  The Board found that the applicant’s story was generally consistent. However, the applicant brought in inconsistent evidence on whether he was a supporter or a member of his political party. The Board found that any continuing threat of his adversaries existed locally, and it was of the view that the applicant was safe in Lahore, Pakistan. If the applicant did not leave Pakistan immediately for China after obtaining his visa, that was not evidence of fear from the applicant. It was incredible that the applicant’s political adversaries would seek him out everywhere when the applicant was not a person of political significance, and there was no evidence that his adversaries have the resources to do that. The Board could not find that there was a real chance of harm on the applicant.  

5)  Decision of the Judge

5.1  The applicant filed his Form 86 supported with affirmation which appeared vague and broad.  In his supporting affirmation, he complained about the hearing bundle being in English. He complained that the interpreter did not interpret to his satisfaction. He complained that the decision makers do not understand Pakistan’s situation. He stated that the situation in Pakistan is still dangerous.  

5.2  The Judge held that the Form 86 and supporting affirmation of the applicant provided vague and bare assertions without particulars and evidence in support. The applicant did not ask for time to read his bundle which contains mainly documents used at his screening interview. The complaint about interpretation is only the applicant’s personal opinion. There was no reasonably arguable basis to challenge the Board’s decision. The applicant was a low ranking member of his political party. There was no reason why his adversaries would target him. Any risk of harm was a localized one.

6)  Grounds of appeal

6.  The applicant in the notice of appeal stated that broadly and vaguely that the Judge refused his application without showing reasons. In his supplemental notice of appeal, he stated that ‘I did not get judgment from the High Court. The High Court Judge could not show any good cause to cancel my leave. He only says the processing of screen were unquestionable’.

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.