RE ADEEL MUHAMMAD

CACV 71/2022, [2023] HKCA 948

On Appeal From [2022] HKCA 1389

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 71 OF 2022

(ON APPEAL FROM HCAL NO 2096 OF 2018)

________________________

RE:

ADEEL MUHAMMAD

Applicant

________________________

Before:

Hon Cheung and Au JJA in Court

Date of Judgment:

7 August 2023

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  On 26 September 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 23 September 2022 (“the Judgment”)  ([2022] HKCA 1389). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung dated 28 January 2022, refusing to grant the applicant extension of time and dismissing his application for leave to apply for judicial review ([2022] HKCFI 323).

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

“DIRECTOR OF IMMIGRATION AND TORTURE CLAIMS APPEAL BOARD DISMISSED MY NON REFOULEMENT CLAIM, I WAS NOT SATISFAID SO I CAME TO THE HIGH COURT FOR LEAVE TO APPEAL FOR JUDICIAL REVIEW. THE HIGH COURT AND THE COURT OF APPEAL DISMISSED MY APPLY. I WANT TO GO TO THE COURT OF FINAL APPEAL.” (sic)

5.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 10 October 2022.  In those submissions, he repeated the factual background and procedural history of his non-refoulement claim and asserted that the Board and the Director made many mistakes in the proceedings without specifying what those alleged mistakes were.  He also claimed that he wanted to go to the Court of Final Appeal for all his asylum seeker friends as they are facing the same problem.  He then asserted that since his arrival in Hong Kong, he stayed in Kam Tin and caused no problem to anyone but he was caught in a working area and the police thought he was working and so the Court gave him the punishment.  He also asserted that he married a Hong Kong woman and had two children who are attending school, and that he had applied for a dependant visa but the Immigration Department caused him to wait for a long time.  He further claimed that from the first day to the present he “has no other spot”.  In support, he also attached various documents including his marriage certificate, the birth certificates of his two children, identification documents of his two children, personal particulars report issued by Karlam Anglo-Chinese Kindergarten attended by his elder son, and a letter issued by the Castle Peak Hospital in relation to his wife suffering from adjustment disorder and anxiety symptoms (“the New Documents”).

6.  In our view, his intended appeal is clearly without substance.  At the outset, the allegations made in his Notice of Motion and written submissions are all bare and vague allegations unsupported by any evidence.  More importantly, he did not identify any specific error in the Judgment with sufficient particulars.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar[2022] HKCA 627 at [6].  It is also unclear how his asylum friends’ cases as claimed had any relevance to his case.  Accordingly, the applicant’s intended appeal plainly has no merit.

7.  Insofar as his assertions in relation to his family and dependent visa application are concerned, those matters and the New Documents have no relevance to his non-refoulement claim.  Further, those matters (together with the New Documents)  are only raised for the first time in the present application and not argued at first instance or on appeal.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it; nor generally is it the practice of the Court to grant leave on new fact-sensitive points not argued in the Court of Appeal: see Re Orense Marian Masangkay[2022] HKCA 33 at [7] and Re Dandiwal Sandeep Singh[2021] HKCA 870 at [7].  In any event, the applicant failed to demonstrate how the New Documents could satisfy the rules in relation to admission of fresh evidence on appeal as set out in Ladd v Marshall [1954] 1 WLR 1489 at p.1491[1], and how those documents have any relevance to his present case.  Accordingly, we refuse to entertain those new submissions and the New Documents in the present application.

8.  Further, even taking his case at its highest, his allegations are fact-specific and do not relate to any question of great general or public importance.

9.  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.

10.  For the above reasons, the Notice of Motion is dismissed.

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

The applicant acting in person

CACV 71/2022

[2022] HKCA 1389

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 71 OF 2022

(ON APPEAL FROM HCAL NO 2096 OF 2018)

________________________

RE:

ADEEL MUHAMMAD

Applicant

________________________

Before:  Hon Cheung and Au JJA in Court

Date of Judgment:  23 September 2022

________________________

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 28 January 2022, by which the Deputy Judge refused to grant extension of time and dismissed his application for leave to apply for judicial review (“the Leave Decision”)  ([2022] HKCFI 323).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 23 June 2017 (“the Board’s Decision”), dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”)  respectively dated 24 August 2015 and 13 February 2017 (collectively referred to as “the Director’s Decisions”)  rejecting the applicant’s non-refoulement claim.

3.  On 10 February 2022, the applicant indicated his consent for this appeal to be disposed of on paper.  Accordingly, we proceeded to consider this appeal on paper based on the available materials.

Background

4.  The applicant is a national of Pakistan.  He entered Hong Kong illegally from Mainland China on 11 May 2006 and was arrested by the police on 31 July 2008.  He was referred to the Immigration Department on 1 August 2008.  On 6 October 2008, he raised a non-refoulement claim on the basis that he will be harmed or killed by Tahir and Tayyah and followers who were members of Pakistan Muslim League (Nawaz Sharif)  owing to a monetary dispute.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] - [5] of the Leave Decision.

5.  By a Notice of Decision dated 24 August 2015, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR3 risk[2] and persecution risk[3].  Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was not substantiated.  The Director further rejected his non-refoulement claim on BOR2 risk[4] by way of the Notice of Further Decision dated 13 February 2017.

6.  The applicant then appealed against the Director’s Decisions to the Board.  The applicant attended the hearing before the Board on 17 February 2017 and gave evidence with the assistance of an interpreter.  The Board dismissed his appeal on 23 June 2017.  Having assessed the evidence, the Board found that the applicant’s claims were not reliable and should be dismissed because of the inherent improbability.  The Board also considered that state protection and internal relocation would be available to the applicant upon his return to Pakistan.  The Board considered that the applicant had failed to substantiate his claim on the applicable grounds and accordingly, his appeal was dismissed.

The Leave Decision

7.  On 3 October 2018, the applicant applied for leave to apply for judicial review against the Board’s Decision.  In his supporting affirmation, he only stated that the Board disregarded his dangerous situation.

8.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  His reasons were set out at [13] - [19] of the Leave Decision:

“13. As mentioned in paragraph 1, this application is late. In AW v Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted. The delay is serious. However, I shall first consider the merits of the applicant’s case.

14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15. 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.’

16. The Board had considered the facts of his case and come to its conclusion with reasons. The applicant’s ground is only his opinion without any evidence to support it.

17. 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.

18. There is no evidence to show that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

19. I therefore refuse to extend time for the applicant to apply for leave to apply for his intended judicial review. Accordingly, I dismiss his application.”

The Appeal

9.  On 10 February 2022, the applicant filed a Notice of Appeal in support of his appeal against the Leave Decision.  In his Notice of Appeal, he stated:

“THE HIGH COURT DID NOT FIND ANY ERROR OR PROCEDING. I WILL SHOW SOME ERROR. I DID NOT GET JUSTICE.” (sic)

10.  Pursuant to the directions made by the Registrar of Civil Appeals on 10 February 2022, the applicant lodged his written submissions on 24 February 2022.  In those submissions, he repeated the alleged factual basis and procedural history of his non-refoulement claim.  He claimed that the Board had no idea about his country in rejecting his non-refoulement claim and that the Leave Decision was not fair.  He further contended that he came to Hong Kong to save his life.

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.  Nowhere in his Notice of Appeal did the applicant identify with specific particulars how the Deputy Judge had erred or been unfair in reaching the Leave Decision.  General and bare assertions of his fear if refouled to his home country plainly do not constitute valid grounds of appeal.  As such, there is simply no viable ground of appeal and his appeal must fail on this basis alone.

14.  Further and in any event, as repeatedly emphasised by the Court of Appeal, it is well-established that the assessment of evidence, Country of Origin Information 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: Re Md Shohel Sheak[2018] HKCA 714 at [13] and Re Limbu Birkhaman[2019] HKCA 50 at [11].  As correctly noted by the Deputy Judge, there was no error of law or irrationality or procedural unfairness in the proceedings before the Board.  We see no basis to interfere with the Leave Decision.

15.  Accordingly, the applicant’s appeal has no merit and we dismiss the appeal.

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

The applicant acting in person