RE HASSAN MUHAMMAD

CACV 464/2024, [2025] HKCA 214

On Appeal From [2024] HKCFI 2818

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 464 OF 2024

(ON APPEAL FROM HCAL NO. 2129 OF 2019)

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JUDGMENT

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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 Judgment of Deputy High Court Judge KW Lung of 4 November 2024 in which he refused to grant leave to him to apply for judicial review.

2)  Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong as a visitor on 25 April 2006 and overstayed since 24 May 2006^[1]. 

3.  The basis of the applicant’s claim is that he would be harmed or killed by two of his Sunni Muslim neighbours because he belonged to the Shia Muslims^[2].

4.  The background facts have been summarized in the Judgment at [5] to [6].

3)  The Director’s Decision

5.  The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 9 May 2019.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk, Bill of Rights Article 2 (right to life) risk as well as other statutory and convention rights against torture and persecution^[3] (‘the Director’s Decision’).

4)  The Board’s Decision

6.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  Having regard to the circumstances of the applicant’s case, the Board dismissed the applicant’s appeal on 19 July 2019 based on the available evidence without an oral hearing as the applicant said that he did not require a hearing (‘the Board’s Decision’)^[4].

7.  The Board’s finding is summarized in the Judgment at [11] to [12].

5)  Decision of the Judge

8.  The applicant filed his Form 86 and supporting affirmation in July 2019^[5].

9.  The Judge agreed with the Board’s Decision in that the applicant’s claim for non-refoulement should be rejected.  He held that the applicant’s arguments that the Board had not taken into account his right to life, or that the Board did not appreciate the issue of state acquiescence or lack of state protection were unfounded.  The Judge held that these grounds were the applicant’s assertions without evidence in support^[6].     

6)  Grounds of appeal

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

(1)  He will suffer hardship if he returns to his country;

(2)  The Board relied on news not officially recognized or is simply hearsay;

(3)  The Board relied on outdated cases; and

(4)  The Board did not have credible source of information resulting in the Board making groundless speculations.

11.  In the applicant’s written submissions, the applicant cited case authority that is often used in non-refoulement claims without specifying how any of the cited authorities applied to the specific matters in his case.  They include the following :

(1)  It is the applicant’s fundamental right not to be subjected to torture: ST v Director of Immigration [2014] 4 HKLRD 277;

(2)  The Decision has a significant effect on the applicant’s torture claim;

(3)  High standards of fairness is required for determining torture claims: Secretary for Security v Prabakar [2005] 1 HKLRD 289;

(4)  Appropriate standard of fairness depends on an examination of all aspects relating to the decision in question: R v Home Secretary ex parte Doody [1994] 1 AC 531 at 560D-G;

(5)  The applicant’s life and limb are in jeopardy and high standard of fairness must be demanded;

(6)  The Court should not usurp the function of the Secretary;

(7)  The Court should determine non-refoulement cases with anxious scrutiny and rigorous examination: R v Home Secretary, Ex‑Parte Bugdaycay [1987] 1 AC 514 at 531E-G;

(8)  The applicant should be given every reasonable opportunity to establish his/her claim;

(9)  The Board erred in simply seeing whether it could find fault in the Director’s Decision;

(10)  The Board did not consider country of origin information; and

(11)  The decision maker is under duty to act fairly as it is a constitutional duty.

12.  In Court the applicant asked the Court to give him more time.  He stated that he is now married in Hong Kong and has two sons.  He stated there are many troubles facing Shia Muslims in Pakistan and many of them have been killed.  His family is worried about him. 

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.  An appeal against the refusal to grant 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. None of the arguments or matters raised by the applicant shows the Judge has made any error of law.

15.  We see no basis to disturb the Judgment.  Accordingly, the appeal is dismissed.