Case Detail

CACV 352/2022, [2025] HKCA 1097

On Appeal From [2024] HKCA 137

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 352 OF 2022

(ON APPEAL FROM HCAL NO 2182 OF 2018)

________________________

RE:

SUBHANI TOSEEF

Applicant

________________________

Before:

Hon Cheung and Au JJA in Court

Date of Judgment:

18 December 2025

________________________

J U D G M E N T

________________________

Hon Au JA (giving the judgment of the court):

1. On 21 August 2025, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal out of time against this court’s judgment of 7 February 2024 (“the Judgment”) ([2024] HKCA 137). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) dated 19 August 2022, by which the Judge dismissed his application for leave to apply for judicial review ([2022] HKCFI 2581).

2. The facts and issues in the appeal, as well as this court’s reasons for dismissing it, are set out in the Judgment. We will not repeat them here. After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”) provides that an appeal shall lie to the Court of Final Appeal at the discretion of this court or the Court of Final Appeal 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.

4. Pursuant to section 24(2) of the HKCFAO, an appellant has 28 days from the date of the Judgment to seek leave to appeal to the Court of Final Appeal. In the present case, the deadline for the applicant to seek leave to appeal against the Judgment fell on 6 March 2024. Accordingly, the applicant was almost 1.5 years late in taking out his application for leave to appeal to the Court of Final Appeal.

5. As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the Court has a discretion to extend time under section 24(5) of the HKCFAO only if good and sufficient grounds are shown by the applicant: see Re Imran Muhammad[2021] HKCA 482 at [9] and the authorities cited therein. In deciding whether there are such good grounds, the Court is entitled to take into account (a) the length of the delay; (b) the reasons for the delay; (c) the chances of the appeal succeeding if an extension of time is granted; and (d) the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another[2021] HKCA 83 at [4] and the authorities cited therein.

6. In his Notice of Motion, the applicant stated:

“I would like to reject and review the decision made by the court. They disregard my dangerous situation.” (sic)

7. The applicant lodged written submissions on 4 September 2025. In those submissions, he complained that the Director failed to consider the factors in local contexts and did not understand the intricacies of the situation in his home country. He also asserted that Pakistan had long been a country fraught with problems on human rights issues and that their police was well known for its corruption and ineffectiveness. He further stated that the Court should understand that he was running away from the problems and that it would be difficult for him to produce evidence, and that his testimonies should be taken as credible as they were consistent. He further complained that the Country of Origin information stated by the Board was based on knowledge of the state report without understanding the cultural context in Pakistan. He further claimed that as a Muslim country that is still heavily communal, it is very easy to detect a person and that it is very likely that they will be killed.

8. At the outset, the applicant’s delay of nearly 1.5 years was extremely substantial and he failed to provide any reason, let alone good and sufficient reason, in support for his delay.

9. The applicant’s application is also plainly devoid of merit. His assertions are all vague, bare and unsupported by any specific particular or evidence. General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar[2022] HKCA 627 at [6]. His allegations are also a mere regurgitation of those submissions he had previously made before this court in his appeal, which we had already considered and rejected: see [9] - [15] of the Judgment. He did not identify any specific error in the Judgment. It is well established that the Court of Appeal will not allow an application of this nature to be deployed as an occasion for re-running the arguments which had already been canvassed at the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014) at [2] and [3]. Clearly, his assertions do not constitute proper grounds of appeal.

10. Further and in any event, even taking them at their highest, his allegations remain fact-specific and do not relate to any question of great general or public importance.

11. Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO. We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

12. For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant him extension of time to pursue a hopeless appeal. The Notice of Motion filed on 21 August 2025 is dismissed.

(Peter Cheung)	(Thomas Au)
Justice of Appeal	Justice of Appeal

The applicant acting in person

CACV 352/2022, [2024] HKCA 137

On Appeal From [2022] HKCFI 2581

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 352 OF 2022

(ON APPEAL FROM HCAL NO 2182 OF 2018)

_______________

RE:

SUBHANI TOSEEF

Applicant

_______________

Before:

Hon Cheung and Au JJA in Court

Date of Judgment:

7 February 2024

_______________

J U D G M E N T

_______________

Hon Au JA (giving the judgment of the court):

1. This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 19 August 2022, by which the Deputy Judge refused the applicant’s application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 2581).

2. The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 20 September 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) respectively dated 11 March 2015 and 31 May 2017 (collectively referred to as “the Director’s Decisions”) rejecting the applicant’s non-refoulement claim.

3. On 30 August 2022, the applicant indicated his consent in writing for this appeal to be disposed of on paper. Accordingly, we have proceeded to consider this appeal on paper based on the available materials.

Background

4. The applicant is a national of Pakistan. He last entered Hong Kong illegally on 11 July 2009 and was arrested by the police for illegal remaining on the same date. On 13 July 2009, he lodged a torture claim, which was subsequently taken by the Director as a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his cousin Nadeem due to a land dispute. Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] ‑ [5] of the Leave Decision.

5. By the Director’s Decisions, the Director dismissed his non‑refoulement claim on all applicable grounds including torture risk^{^[1]}, BOR2 risk[2], BOR3 risk^{^[3]} and persecution risk^{^[4]}. The applicant then appealed against the Director’s Decisions to the Board. The Board heard the matter on 9 August 2018 and the applicant gave evidence.

6. By the Board’s Decision, the Board dismissed the applicant’s appeal. In essence, after considering the available evidence, the Board found that the applicant was not a credible witness and had fabricated his claim to support his application for non-refoulement protection. The Board found that the applicant’s evidence was inconsistent as to whether he was attacked by Nadeem and whether he was present in the house during Nadeem’s visit. The Board further noted that that he had no documentary support such as land registration for his claim. The Board further considered that the applicant’s delay in departing Pakistan was inconsistent with someone who genuinely feared a risk of harm. Accordingly, the Board refused to accept that he would face a real risk of harm upon refoulement and dismissed his appeal on all applicable grounds.

The Leave Decision

7. On 10 October 2018, the applicant filed his Form 86 and supporting affirmation, applying for leave to apply for judicial review against the Board’s Decision. No ground was given in his Form 86 and in his supporting affirmation, the applicant only stated that the Immigration Department disregarded his dangerous situation. As the applicant did not request for an oral hearing, the Deputy Judge considered his application on paper.

8. By the Leave Decision, the Deputy Judge dismissed his application for leave to apply for judicial review. His reasons were set out in detail at [15] ‑ [21] of the Leave Decision:

“15. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration[2018] HKCA 524, §14 (1).
16. In Re: Kartini[2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
‘13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’
17. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
18. The reason given by the applicant is not valid reason to challenge the Board’s Decision from the applicant.
19. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
20. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.
CONCLUSION
21. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

The Appeal

9. On 30 August 2022, the applicant filed a Notice of Appeal to appeal against the Leave Decision. In his Notice of Appeal, he only stated:

“I would like to reject and review the decision made by Torture Claims Appeal Board on my case. They disregard my dangerous situation.” (sic)

10. Pursuant to the directions of the Registrar of Civil Appeals dated 30 August 2022, the applicant lodged his written submissions on 13 September 2022. In those submissions, he alleged that the Board’s Decision was unfair given the lack of understanding of his home country situation. He further claimed that Pakistan was fraught with problems on human rights issues and the Board’s Decision was only based on state report without understanding the cultural context in Pakistan. The applicant claimed that the security forces were unaccountable for human rights violations and that as a Muslim country, it would be easy to track people down and it would be likely that they would be killed. He thus claimed that there had been unreasonableness in the Board’s Decision and that there had been institutionalised bias that needed to be investigated.

Discussion

11. The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration[2018] HKCA 524 at [14].

12. In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

13. In our view, the applicant’s allegations have no substance. At the outset, the applicant’s complaints in the present appeal are mainly directed at the Board and fail to point to any error of the Leave Decision. His complaints are also all general and vague assertions without specific particulars or evidence in support. They therefore do not constitute proper grounds of appeal. See: Re Saldua Dorothy Trifalgar[2022] HKCA 627 at [6]. General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar[2022] HKCA 627 at [6]. This appeal must fail on this basis alone.

14. Further, it is trite that assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers. The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Nupur Mst v Director of Immigration[2018] HKCA 524 at [14]; Re Md Shohel Sheak[2018] HKCA 714 at [13]; and Re Limbu Birkhaman[2019] HKCA 50 at [11]. In our view, there plainly is none in the present case.

15. For the reasons given above, the applicant’s appeal has no merit. Accordingly, we dismiss the appeal.

(Peter Cheung)	(Thomas Au)
Justice of Appeal	Justice of Appeal

The applicant acting in person

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

RE SUBHANI TOSEEF

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