RE AKHTAR WALEED

CACV 395/2024, [2025] HKCA 70

On Appeal From [2024] HKCFI 2356

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 395 OF 2024

(ON APPEAL FROM HCAL NO. 1830 OF 2019)

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J U D G M E N T

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Hon Cheng J (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 KW Lung (“the Judge”)  of 23 September 2024 in which he refused to grant leave to him to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”)  of 26 June 2019 (“the Board’s Decision”).

2)  Background

2.  The applicant is a national of Pakistan. He alleged that he entered Hong Kong illegally on 11 September 2015. He lodged a non-refoulement claim by an undated written signification which was received by the Immigration Department on 25 September 2015[1].

3.  The basis of the applicant’s claim is that if he returns to Pakistan he would be harmed or killed by his girlfriend Iqra’s family because they objected to the applicant’s relationship with Iqra[2].

4.  The background facts have been summarised in the decision of the Judge at [3] to [8].

3)  The Director’s Decision

5.  The Director of Immigration (“the Director”)  decided against the applicant’s non-refoulement claim on 25 August 2017.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk (“BOR 3”), Bill of Rights Article 2 (right to life)  risk (“BOR 2”), 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 Board on 25 September 2017[4].  After a hearing held on 7 May 2019, the Board dismissed the applicant’s appeal on 26 June 2019 in the Board’s Decision.

7.  The Board’s findings are summarised in the decision of the Judge at [11]-[14].

5)  Decision of the Judge

8.  The applicant filed his Form 86, affirmation and a statement attached to his Form 86. The Judge summarized the applicant’s major grounds for leave for judicial review in his decision at §16.

9.  The Judge noted that the Board rejected the applicant’s evidence in support of his claim, so that there was no factual basis in support of it[5]. The Judge further held that the grounds relied on by the applicant do not assist his case. A high standard of fairness does not entail interpretation service at all times as the applicant desires. The Board does not shoulder any duty to give notice to the applicant of the Board’s decision by phone. The applicant’s credibility is within the province of the Board. As for other of the applicant’s complaints, they are merely his personal opinions and comments without evidence in support[6].

6)  Grounds of appeal

10.  The applicant in the notice of appeal stated bare assertions without particulars that consisted of the following:

‘ I am disagree with the decision maker authorities. They were rejected all my evidence. I am opposed the decision made by Director of Immigration and decision made by the Adjudicator of Torture Claim Appeal Board’

11.  The applicant’s written submission can be summarised as follows :

i.  the applicant does not believe his case was determined fairly;

ii.  there should have been assistance to the applicant to help him understand the case. Without such understanding, the applicant could not appeal. Legal and language assistance was never provided to the applicant;

iii.  the decision makers had wrongly fettered their discretion by refusing the applicant’s appeal; the Board acted with procedural unfairness; the decisions were unreasonable or irrational, or were the result of procedural error; the decision maker failed to meet the standard of greater care owed to self-represented claimants;

iv.  there was discrimination as the authorities simply sought a quick disposal;

v.  the lack of fairness should not be tolerated, and the Court of Appeal should point out such errors.

12.  At the hearing of the appeal, the applicant said that he had nothing to add to what had already been stated in his notice of appeal and written submissions.

7)  Our view

13.  We are of the view that the applicant’s appeal is without merit.  His grounds of appeal and written submission consist of bare allegations without particulars or specifics.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave to apply 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 raised by the applicant shows the Judge made any error of law. 

15.  In respect of the applicant’s written submissions,

(1)  for (ii), the allegation is factually incorrect. Legal and language assistance was provided to the applicant: see Director’s Decision at §5, 6; Board’s Decision at §11.

(2)  For (i), (iii), (iv)  and (v), they are bare assertions unsupported by evidence or particulars: Salim Ahmed alias MD Salim [2020] HKCA 244 at §20. They are also the applicant’s own personal opinions and comments without evidence in support.

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