RE HUSSAIN KHALID

CACV 131/2023, [2024] HKCA 686

On Appeal From [2023] HKCFI 551

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 131 OF 2023

(ON APPEAL FROM HCAL NO. 955 OF 2018)

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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 Bruno Chan given on 19 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 31 July 2023, for leave to appeal against our judgment to the Court of Final Appeal.  The applicant stated in his notice of motion in summary the following points :

1)  The applicant did not know that his failure to lodge skeleton submission would result in not having an oral hearing.

2)  The Judges were procedurally unfair.  The applicant did not get help on translation from friends.

3)  The applicant did not have legal assistance.

4)  The applicant believes internal relocation is not possible as the army were killing people like enemies.

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

1)  He referred to authorities often cited in torture claim applications;

2)  His life and limb will be in jeopardy on refoulement and high standard of fairness must be observed;

3)  He should be given every reasonable opportunity to establish his claim;

4)  The Adjudicator did not properly assess his credibility; and

5)  Internal relocation within Pakistan is not possible as the army are putting people in jail without reason, and had killed and tortured supporters of PTI.

II.  Our view

5.  Under section 22(1)(b) of the Hong Kong 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 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 31 July 2023 is dismissed.

CACV 131/2023, [2023] HKCA 886

On Appeal From [2023] HKCFI 551

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 131 OF 2023

(ON APPEAL FROM HCAL NO. 955 OF 2018)

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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 Bruno Chan of 19 April 2023 in which he refused to grant leave to the applicant 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.  The applicant illegally entered Hong Kong.  He was arrested by the police on 31 December 2008.  He made a torture claim on 2 January 2009.  The claim has then expanded to include non‑refoulement protection on all available grounds.

4.  The basis of the applicant’s claim is that he would be harmed or killed by his maternal uncle Muhammad Azam (‘MA’) because he refused to marry his daughter Bano.  He says that MA is friendly with politicians and local police officers.

5.  The background facts have been summarized in the decision of the Judge at [2]-[4].

3)  The Director’s Decision

6.  The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 9 March 2015.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), as well as other statutory and convention rights against persecution and torture (‘the Director’s Decision’).

7.  The Director by a further decision dated 25 May 2017 (‘the Director’s Further Decision’) rejected the applicant’s claim for right to life under Article 2 of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decision

8.  The applicant appealed/petitioned against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’) on 20 March 2015.  After a hearing held on 25 January 2018 where the applicant was absent without reasonable explanation, the Board dismissed the applicant’s appeal on 14 May 2018 (‘the Board’s Decision’).

9.  The Board held that the applicant failed to establish his case on all applicable grounds.  It held that the applicant was able to leave Pakistan without interference from the government.  There was no threat of harm instigated by the government against the applicant.  The applicant was not assaulted by anyone acting on behalf of the government.  The Board did not accept that MA was interested in locating the applicant.  The applicant was living safely in Pakistan for three years before he decided to leave Pakistan.  The applicant had not suffered any serious injury or harm.

5)  Decision of the Judge

10.  The applicant filed his Form 86 and supporting affirmation.  No proper grounds of his intended appeal were provided.  Before his application was heard by the Judge, the applicant filed another application to withdraw his application.  The Court on 13 January 2020 allowed his withdrawal.  However in November 2022, the applicant filed another application to request that his application be re‑opened.  The Judge directed that the action be reinstated for determination on the merits.

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

6)  Grounds of appeal

12.  The applicant in the notice of appeal did not provide any grounds of appeal. 

7)  Our view

13.  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 identified by the applicant.

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