RE MUHAMMAD ASGHAR

CACV 387/2018

[2019] HKCA 713

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 387 OF 2018

(ON APPEAL FROM HCAL 787 OF 2017)

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J U D G M E N T

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Hon Au JA (giving judgment of the court):

1.  By a judgment dated 25 January 2019 ([2019] HKCA 112) (“the Judgment”), this court (Hon Chu, Barma and Au JJA) dismissed the applicant’s appeal against the decision of Campbell-Moffat J (“the Judge”) dated 3 August 2018 refusing his leave to apply for judicial review (“the Judge’s Decision”).  The intended judicial review was against the decisions of the Director of Immigration (“the Director”) dated 26 November 2015 and 26 June 2017 rejecting his non-refoulement claim.  The applicant now seeks leave to appeal to the Court of Final Appeal.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.

3.  By a Notice of Motion dated 29 January 2019, the applicant applied for leave to appeal against the Judgment to the Court of Final Appeal.

4.  In the Notice of Motion, the applicant set out the following grounds:

“I would like to inform court of appeal that I did not have a lawyer and I requested court of appeal for more time to submit documents but the court rejected my request and made unfair decision. There is some error in law decision. Decision maker just considered some information only and my previous facts which were favour on reject my claim. Actual life occur different situation then mentioned call information. The decision is betray a based and formula approach unlikely fair access the danger of my life and clearly calculate to reject my claim, my concern in previous affirmation given...”

5.  In compliance with the direction given by Master Au-Yeung on 30 January 2019, the applicant lodged his written submission on 11 February 2019.  In his written submission, the applicant elaborated that his case was not fully considered on the following grounds:

“1) Procedural impropriety in failing to consider the concept of extended state acquiescence in the consideration of my claims.

2) Procedural impropriety in falling to conduct sufficient independent inquiry into the relevant COI as to the effectiveness of the Pakistan authorities to protect its Citizens in the consideration of my claim.

3) Procedural impropriety in falling to consider the facts that person.

4) Misdirection in law falling to consider the psychological effects of the threats/attacks made against me or the severity on me or the cumulative effect of inactions by the police in the protection citizens in Pakistan.

5) Irrationality and illegality in failing to give sufficient reasons as to why I was not found to be at risk any of the grounds I faced.

6) There are broad assertions presented by me to take into account of Col in assessing the dangerous situation in Pakistan.”

6.  He also reiterated his background for the claims and complained that he was not given an oral hearing which amounted to injustice.

7.  We have duly considered the applicant’s Notice of Motion and his written submission.  Pursuant to paragraph 3 of Practice Direction 2.1, we proceeded to consider this application on papers without any oral hearing.

8.  First of all, we have dealt with the applicant’s abandonment of right to an oral hearing at [2]- [3] of the Judgment.

9.  Secondly, the rest of the grounds advanced in the applicant’s written submissions were already dealt with by the Judge.  She had found there was no error in law or procedure: see [12] of the Judge’s Decision.  We do not find any legal error in her decision: see [13] of the Judgment.

10.  Under section 22(1)(b) of the Hong Kong 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.  For the reasons that we gave in the Judgment, we did not see any prospect of success in the applicant’s intended appeal against the Judge’s Decision.  None of the questions raised by the applicant in the Notice of Motion or in his written submission involve any question of great general or public importance such that it ought to be submitted to the Court of Final Appeal for decision.  Nor do we see any basis to grant leave on the “otherwise” limb.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484) are not met.

11.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his Notice of Motion.