RE AKRAM MUHAMMAD

CACV 59/2022

[2022] HKCA 768

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 59 OF 2022

(ON APPEAL FROM HCAL NO. 2462 OF 2020)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  On 1 April 2022, this Court handed down our judgment ([2022] HKCA 445) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 19 January 2022 refusing to extend the time for him to apply for judicial review and dismissing his application for leave to apply for judicial review.

2.  On 29 April 2022, the applicant filed a notice of motion to apply for leave to appeal against our judgment to the Court of Final Appeal. He has also lodged a written submission to support his application.

3.  In his written submission, the applicant requested to have an oral hearing of this application. Having considered the notice of motion and written submission, 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.

4.  Under section 22(1)(b) of the Court of Final Appeal Ordinance, Cap. 484, leave to appeal to the Court of Final Appeal may be granted 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.

5.  The grounds for the application were set out in a four-page document attached to the notice of motion. The grounds are nearly identical to the grounds of appeal attached to the notice of appeal filed on 31 January 2022. They had been set out in [11] of our judgment. We will not repeat them in this judgment.

6.  The applicant’s written submission put forward the following arguments (respectively “Ground (1)” to “Ground (10)”):

(1)  The judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director whereby the Director was required to give reasons justifying his decision.

(2)  The judges were wrong as a matter of law for not having applied the principle of irrationality to the decision of the Director.

(3)  There is some error of law in that the decision maker just relied on COI and previous facts that favour the rejection of the applicant’s claim.

(4)  The fact that the decision maker has not considered all aspects that are relevant to the applicant’s case is an error in law and this is of great general or public importance.

(5)  Actual life situation was different from what was mentioned in the COI. The officer and the Court preferred to ignore the overwhelming evidence of violence towards minorities.

(6)  The Judge did not apply the law properly and there was procedural unfairness.

(7)  The applicant’s life is in danger in his home country. He would be killed or harmed if he were to return to his country.

(8)  The Judge stated at [4] of the Form CALL-1 that the applicant failed to attend any of the scheduled screening interviews before the Immigration Department without reasonable excuses. However, the applicant never failed to attend scheduled screening interview with the Immigration Department. On the occasion on 10 December 2014 when the Duty Lawyer and Immigration officer visited him at Tong Fuk Correctional Institution, he rejected the Urdu interpreter arranged by the Immigration Department because this interpreter did not interpret correctly and had threatened him during a previously video recording interview with the police in connection with a robbery case.

(9)  Given that the Board had accepted that the applicant had a land dispute and an argument with Ijaz, what was the reason for the Board to doubt the applicant’s evidence that Ijaz intended to kill him?

(10)  The Board never collected information from Pakistan or its consulate in Hong Kong. How could the Board say that state protection would be available to the applicant? On 26 April 2022, three Chinese nationals were killed in a terror attack in Pakistan notwithstanding the high security given to Chinese nationals. There were also suicide bomb attacks on Chinese nationals last July and August. A three-men suicide squad who tied to raid the Chinese consulate in Karachi was shot dead by the police. In these circumstances, how could the applicant be safe and how could he expect police protection? ;

7.  For the reasons set out below, we are of the view that there is no proper basis to grant leave to appeal to the Court of Final Appeal:

(1)  All the grounds and arguments raised by the applicant relate solely to the circumstances of his claim. It has not been shown that the intended appeal involves a question of great general or public importance, as required by section 22(1)(b).

(2)  For the reasons we gave at [14] to [20] of our judgment, the grounds attached to the notice of motion are unarguable.

(3)  Grounds (1) to (6) in the written submissions are general assertions devoid of supporting particulars.

(4)  As to Ground (8) in the written submission, [4] of the Form CALL-1 only set out the factual background of the case. Whether the applicant had failed to attend the screening interviews does not impact on the Judge’s decision not to extend the time for applying for judicial review and the refusal of the application for leave. This ground is therefore irrelevant.

(5)  In respect of Grounds (7) and (9) in the written submission, as summarised in [7] of our judgment, in casting doubt over the applicant’s assertion that Ijaz would kill him, the Board had regard to the fact that Ijaz had stopped causing trouble to the applicant’s farmland for some time, he had never inflicted bodily harm on the applicant, and there was no evidential basis to infer that the applicant may face a real or substantial risk of being subject to ill-treatment or torture. The challenges made to the Board’s finding and assessment of risk have no merits.

(6)  The arguments about availability of state protection under Ground (10) of the written submission are misplaced. The Board’s finding that there was no real or substantial risk to the applicant was not based on the availability of state protection.

(7)  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

8.  As the statutory requirements for giving leave to appeal are not met, we dismiss the notice of motion.