RE WARIS MUHAMMAD

CACV 130/2023, [2024] HKCA 685

On Appeal From[2023] HKCFI 1073

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 130 OF 2023

(ON APPEAL FROM HCAL NO. 747 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 26 April 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.  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. There are some error in my decision maker authorities. I am disagree with the decision made by the Director of Immigration, as well as the decision made by the Adjudicator of Torture Claim Appeal board. I do not think my case determined fairlly.’

4.  The applicant stated in his written submission in summary the following points :

1)  Whilst interpretation service does not need to be made available at all times to a non-refoulement claimant, that does not mean that a litigant should be deprived of the basic right to understand contents of the process or judgment;

2)  No assistance was given to the applicant in relation to his BOR 2 risk claim and the authorities failed to acknowledge this;

3)  The lack of fairness in the non-refoulement process is appalling and the Court of Appeal should investigate, point out and correct the errors on the part of the decision makers; and

4)  The applicant believes that because he does not understand English he has been discriminated upon and put at a disadvantage.

II.  Our view

5.  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.

6.  The matters stated by the applicant in his notice of motion and written submissions do not constitute grounds for granting leave to the Court of Final Appeal.  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 notice of motion and written submissions. 

7.  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

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

CACV 130/2023, [2023] HKCA 887

On Appeal From [2023] HKCFI 1073

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 130 OF 2023

(ON APPEAL FROM HCAL NO. 747 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 26 April 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.  After the case was vacated, the applicant filed his submission on 26 June 2023.  Despite the late filing of the submission, we will take it into consideration in our decision.

2)  Factual background

3.  The applicant is a national of Pakistan.  The applicant alleged that he illegally entered Hong Kong on 5 June 2015.  He made a non‑refoulement claim on 28 December 2015.

4.  The basis of the applicant’s claim is that he would be harmed or killed by people from the Pakistan Muslim League (N) because of political and land dispute.  He claimed to be a supporter of the rival Pakistan People’s Party (‘PPP’).

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

3)  The Director’s Decision

6.  The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 14 March 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 persecution except torture (‘the Director’s Decision’).

4)  The Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’) on 28 March 2018.  After a hearing held on 28 November 2018, the Board dismissed the applicant’s appeal on 14 March 2019 (‘the Board’s Decision’).

8.  The Board did not accept that the applicant ever had any actual or perceived involvement with the PPP.  It did not accept that the applicant was an actual or perceived campaigner.  The Board found that the applicant was never harmed or targeted.  The applicant was not pursued for harm in Pakistan.  The applicant had no involvement in Pakistan politics giving rise to a real chance of harm.  The applicant accepted before the Board that he never had a land problem in Pakistan.

5)  Decision of the Judge

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

10.  The Judge held that the Board had assessed the applicant’s case and did not accept the applicant’s evidence on the facts of his case.  The Judge did not find any error of law or procedural irregularity in the Board’s Decision.

6)  Grounds of appeal

11.  The applicant in the notice of appeal stated that his life was in great peril. 

12.  In the applicant’s supporting affirmation no grounds of appeal were provided.

13.  In the applicant’s written submissions, he gave broad and vague assertions without specifying how they related to the specifics of his case.  He annexed certain case authority without specifying how they relate to his case or how they show that there was error of law in the Judge’s decision.

7)  Our view

14.  We are of the view that the applicant’s documents consist of 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].  None has been shown by the applicant.

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