RE MUKHTAR AMIR

CACV 100/2023, [2024] HKCA 684

On Appeal From[2023] HKCFI 668

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 100 OF 2023

(ON APPEAL FROM HCAL NO. 716 OF 2019)

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JUDGMENT

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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 21 July 2023, this Court (Cheung JA and Anthony Chan J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge K W Lung given on 21 March 2023 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.  Pursuant to the directions of the Registrar of Civil Appeals dated 27 July 2023, the applicant was to lodge and serve on or before 10 August 2023 written submissions failing which he will be deemed to have abandoned his right to rely on written submissions and the matter will be considered by this Court based on the available materials.  The applicant has not lodged or served written submission by the stipulated deadline.

4.  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.

5.  The applicant now applies, by a notice of motion filed on 27 July 2023, for leave to appeal against our judgment to the Court of Final Appeal.  The applicant stated in his notice of motion the following :

‘ I would like to inform to Court of Final Appeal. I am strongly opposed the decision made by the authorities. Because they were totally relied on some web news which officially not recognized. So I am disagree with the decision. It is totally unfair to me and I do not think my case determined fairlly.’

II.  Our view

6.  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.

7.  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 documents. 

8.  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

9.  For these reasons, the notice of motion dated 27 July 2023 is dismissed.

CACV 100/2023, [2023] HKCA 885

On Appeal From [2023] HKCFI 668

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 100 OF 2023

(ON APPEAL FROM HCAL NO. 716 OF 2019)

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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) :

1)  The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge K W Lung of 21 March 2023 in which he refused to grant leave to him to apply for judicial review.

2.  This appeal was scheduled to be heard on 18 July 2023.  Despite the directions contained in the letter from the High Court to the applicant dated 31 May 2023, the applicant failed to lodge the skeleton argument by the stipulated time.  Accordingly the Court informed the applicant by letter dated 26 June 2023 that the hearing would be vacated and the Court would deal with this appeal on paper. 

2)  Factual background

3.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 18 October 2009.

4.  The applicant made a torture claim with the Immigration Department on 20 October 2009.  On 9 May 2013, the applicant’s torture claim was rejected.  The applicant did not appeal this decision.

5.  On 20 May 2013, the applicant made a non‑refoulement claim on all applicable grounds excluding torture.

6.  The basis of the applicant’s claim is that he would be harmed or killed by Raja Shahjehan (‘RS’) because he had injured RS in a shooting incident.  The applicant’s fear also comes from him fleeing Pakistan while on bail after being charged with the attempted murder of RS and his associate.

7.  The background facts have been summarized in the decision of the Judge at [5]-[6].

3)  The Director’s Decision

8.  The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 17 October 2016.  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 persecution except torture (‘the Director’s Decision’).

4)  The Board’s Decision

9.  The applicant appealed/petitioned against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’) on 27 October 2016. After a hearing held on 12 July 2018, the Board dismissed the applicant’s appeal on 1 March 2019 (‘the Board’s Decision’).

10.  The Board held that while some of the applicant’s evidence remained constant and detailed, having considering the evidence as a whole and the Board’s concern with the authenticity of the applicant’s supporting documentation, inconsistencies and vague evidence on significant details, it was not satisfied that the applicant was a credible witness.  The Board held that it did not accept that the applicant was involved in a land dispute.  It did not accept that the applicant was arrested and detained by the police and physically mistreated for seven days, or imprisoned for several months.  It did not accept that the applicant was charged with attempted murder.  It did not accept that RS wanted to kill the applicant or seek revenge from him.  It did not accept that the police attended the applicant’s house and harassed his family.  There was no real risk of harm found.

5)  Decision of the Judge

11.  The applicant filed his Form 86 and supporting affirmation.  No proper grounds of his intended appeal were provided.

12.  The Judge held that there was no valid reason for the applicant to challenge the Board’s decision.  The Judge did not find any error of law or procedural irregularity in the Board’s Decision.

6)  Grounds of appeal

13.  The applicant in the notice of appeal stated that he did not think his case was determined fairly.  

7)  Our view

14.  We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  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].  None has been shown by the applicant.

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