Re Hussain Khalid

CACV 476/2021

[2022] HKCA 523

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 476 OF 2021

(ON APPEAL FROM HCAL NO. 2897 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) :

I.  The appeal

1.This is an appeal against the decision of Deputy High Court Judge P Li of 4 October 2021 refusing to grant leave to the applicant to apply for judicial review against the decisions of the Torture Claims Appeal Board (‘the Board’).  The applicant agreed to have the appeal disposed of on paper without an oral hearing.

II.  Factual background

2.The applicant is a national of Pakistan.  He arrived in Guangzhou on the Mainland on 27 February 2012 and stayed in Shenzhen for over a year until he illegally entered Hong Kong on 31 July 2013.  He was arrested by the Police on 3 September 2013 and was released on recognizance on 18 October 2013.  On 4 September 2013, he applied for non-refoulement protection.

3.The basis of the applicant’s claim is that he would be harmed or killed by supporters of a rival political party known as the Pakistan Peoples Party in his home country.

4.The details of the applicant’s claim have been summarized by the Judge at [3]-[7] of the CALL‑1 Form.

III.  The Director’s Decisions

5.The Director of Immigration (‘the Director’) decided against the applicant’s claim on 2 November 2015.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), as well as his other statutory and convention rights against torture and persecution (‘the Director’s Decision’).  By a further decision dated 22 February 2017, the Director dismissed the applicant’s claim under Article 2 (right to life) of the Bill of Rights (‘BOR 2’) (‘the Directors’ Further Decision’). 

IV.  The Board’s Decisions

6.The applicant appealed against the Director’s Decision to the Board and a hearing was held on 27 July 2016.  The Board dismissed the applicant’s appeal against the Director’s Decision on 16 November 2016.  The Board found that the applicant’s evidence was inconsistent.  In particular, the applicant’s evidence was self‑contradictory as he was even unable to recall which political party he was supporting.   The Board was of the view the applicant was not a credible witness and found that the applicant’s claims were fabricated (‘the Board’s Decision’).

7.As for the Director’s Further Decision on 22 February 2017, the applicant appealed out of time.  The Board accepted the late filing of the applicant’s appeal.  However, it found there was no fact or matter which would alter the Board’s view on the applicant’s credibility or show that there might be a real or genuine chance of him suffering harm warranting non‑refoulement protection if he returned to Pakistan.  Therefore, the Board dismissed the applicant’s appeal against the Director’s Further Decision on 14 December 2018 (‘the Board’s Further Decision’).

V.  Decisions of the Judge

8.The applicant filed a Form 86 with a supporting affirmation.  No grounds were provided on his Form 86.  In his affirmation, he merely annexed the copies of the decisions of the Director on 2 November 2015 and the Board on 14 December 2018.  As the applicant did not request for an oral hearing, the Judge decided the application on papers.

9.Although the applicant stated that the challenge was against the Director’s Decision of 2 November 2015 and the Board’s Decision of 14 December 2018, the Judge had correctly regarded that challenge was against the two Board’s Decisions.  The Judge held that the Board was under a duty to make finding on the facts and the credibility of the applicant.  This decision would not be interfered with by the Court unless there was an error in law and procedure.  In the absence of such error, the Board’s Decisions were rational and the Judge was of the view there was no reasonable prospect of success in the leave application.  Therefore, the applicant’s application was dismissed.     

VI.  Grounds of appeal

10.The applicant in his notice of appeal stated the following :

‘ I want to quash the decision of the High Court.

The High Court did not find any error of proceding [sic] of Torture Claims Appeal Board.  The decision of the Board is full of error. Please quash my result given by the High Court.’

11.In the applicant’s written submissions, the applicant reiterated that he would be killed by the rival political party if he was returned to his home country. He pleaded for the Court to grant him leave to appeal.    He stated that as a grass root worker, the media would not cover his story.  He again complained that the Director rejected his non-refoulement claim.  

VII.   Our view

12.We are of the view that the applicant’s submissions consist of bare allegations without particulars or specifics and his appeal is simply without merits.  The applicant provided no reasonably arguable grounds for judicial review. 

13.As this Court has previously stated, 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].

14.It is, thus, incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in assessing the Board’s Decision.

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

Applicant, unrepresented, acting in person