RE MUHAMMAD HUSSAIN

CACV 220/2024, [2025] HKCA 57

On Appeal From [2024] HKCFI 1352

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 220 OF 2024

(ON APPEAL FROM HCAL NO. 1272 OF 2019)

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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 21 May 2024 in which he refused to grant leave to him to apply for judicial review.

2.  The applicant consented on 4 June 2024 for the appeal to be determined on paper without an oral hearing.

2)  Background

3.  The applicant is a national of Pakistan.  In 1997, he came to Hong Kong as a visitor and was allowed to stay for three months, and his son applied for a dependant visa for him.  During the process of application, the applicant returned to Lahore.  A dependant visa was issued to the applicant in December 1998.  The applicant came to Hong Kong in January 1999.  Upon expiry of the dependant visa, the applicant overstayed in Hong Kong.  The applicant made a torture claim in September 2011 which was later treated as a non-refoulement claim on 3 March 2014[1].  

4.  The basis of the applicant’s claim is that he would be harmed or killed by Zulifiqar’s brothers named Yousaf and Asghar since the applicant assisted his cousin Ashraf to get a lighter sentence from his murder of Zulifiqar[2].

5.  The background facts have been summarized in the decision of the Judge at [2] to [6].

3)  The Director’s Decisions

6.  The Director of Immigration (‘the Director’)  decided against the applicant’s non-refoulement claim on 22 December 2014.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk (‘BOR 3’), as well as other statutory and convention rights against torture and persecution[3] (‘the Director’s Decision’).

7.  The Director made a further decision and decided against the applicant’s right to life claim on 3 February 2017 (‘the Director’s Further Decision’).  The Director’s Further Decision covered Article 2 (right to life)  of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decision

8.  The applicant appealed/petitioned against the Director’s Decision of 22 December 2014 to the Torture Claims Appeal Board (‘the Board’).  The Board dismissed the applicant’s appeal/petition on 7 November 2016 without an oral hearing[4] (‘the Board’s Decision’).

9.  The Board’s finding is summarized in the decision of the Judge at [9] to [10].

10.  The applicant appealed/petitioned against the Director’s Further Decision to the Board.  After a hearing held on 30 January 2019, the Board dismissed the applicant’s appeal/petition on 22 March 2019[5] (‘the Board’s Further Decision’). 

11.  The Board’s finding is summarized in the decision of the Judge at [12] to [13]. At [13], the Judge was slightly incorrect when saying that the Board had ‘...considered again the factual basis of the Applicant’s case as stated for his claim as well as all the documents and additional information submitted by him...’.  This is because the applicant strictly speaking did not submit any additional documents in support of his BOR 2 risk claim[6].

5)  Decision of the Judge

12.  The applicant filed his Form 86 and supporting affirmation on 10 May 2019[7].

13.  The Judge held that the applicant provided no ground for seeking relief, and in his affirmation he made the barest of assertions that it was procedurally unfair without particulars.  In the absence of error, there is no reasonably arguable basis for the intended challenge.  Further, the Board rejected the applicant’s BOR 2 risk claim on factual basis, as even on the applicant’s own case, the facts do not engage BOR 2.  The Board further had the benefit of hearing the applicant by an oral hearing[8].

6)  Grounds of appeal

14.  The applicant in the notice of appeal stated the following :

‘ I am a 80 years old man. From Pakistan. I shocke to see the High Court judgment. I do not agree. I want appeal.’

7)  Our view

15.  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 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].

16.  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 raised by the applicant shows the Judge has made any error of law.

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