RE AHMAR KHAN

CACV 225/2023, [2024] HKCA 454

On Appeal From [2023] HKCFI 1855

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 225 OF 2023

(ON APPEAL FROM HCAL NO. 308 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 14 July 2023 in which he refused to grant leave to him to apply for judicial review.

2.  This appeal was scheduled to be heard on 17 April 2024.  Despite the directions contained in the letter from the High Court to the applicant dated 20 September 2023, the applicant failed to lodge any skeleton argument by the stipulated time.  Accordingly the Court informed the applicant by letter dated 27 March 2024 that the hearing would be vacated and the Court would deal with this appeal on paper which we will now do. 

2)  Factual background

3.  The applicant is a 28-year-old national of India.  The applicant’s mother entered Hong Kong in May 2009 on the strength of her passport together with the applicant and her other son who were both minors at the time.  They overstayed in Hong Kong.  On 5 June 2009, the three of them lodged a torture claim[1] (‘the original claim’).  The claim of the applicant shared the same basis of the claim of his mother, namely, the fear that if he returned to India, he would be harmed or even killed by his mother’s neighbours because they were enemies of his mother’s husband.  The claim was dismissed by the Director of Immigration (‘the Director’)  on 27 January 2012.  On 9 February 2012, the applicant’s mother (on the applicant’s behalf)  lodged her notice of appeal to the Torture Claims Appeal Board (‘the Board’)[2]. The appeal was refused by the Board on 4 May 2012[3].

4.  On 5 November 2013, the applicant who was then no longer a minor, lodged a non-refoulement claim (‘the second claim’)  on the same basis as before under the Unified Screening Mechanism on all applicable grounds other than torture risk.  On 24 May 2016, before the second claim could be dealt with by the Director, the applicant withdrew the second claim stating that he was safe to go back to his home country.  In June 2016, the applicant was removed to India[4].  By a series of three letters from October 2018 to November 2018, the applicant effectively made a request to make a subsequent claim[5] under section 37ZF(3)  of the Immigration Ordinance, and such request for a subsequent claim was dismissed by the Director on 3 December 2018[6] (‘the Director’s Subsequent Decision’).  On 1 February 2019, the application filed his Form 86 for leave to apply for judicial review[7].

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

3)  The Director’s Decision on the original claim

6.  The Director’s Decision covered statutory and convention rights against torture.

4)  The Board’s Decision on the original claim

7.  The Board found at [4] that based on the applicant’s evidence, there was no evidence of the alleged harm coming from the applicant’s neighbours having any political involvement.  There was no evidence that suggested there was state acquiescence when the police took no action when there was an alleged attack on the applicant’s father by his neighbours with bamboo.  The Board at [E5] and [F5-6] found that the police have directed the applicant’s mother to make a complaint to the Court, and she did not do so. The Board at [F8] held that the three applicants had been able to leave and return to India using passport without problem, suggesting that they were not persons of interest in the eyes of the Indian authorities.

5)  Director’s Subsequent Decision

8.  The Director refused to allow the applicant to make a subsequent claim upon finding that the basis thereof was the same as the previous claim, and that there was insufficient evidence provided by the applicant to show that there was significant change in circumstances since his previous claim was determined, or that there was any realistic prospect of success[8].

6)  Decision of the Judge

9.  The Judge held :

‘ 12. In the premises and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request to make a subsequent claim, and given the correct and unchallenged findings of both the Director and the Board in his previous claim of the availability of state/police protection to negate any such risk arising from what were essentially some private disputes between his family and their neighbours without any state or official involvement, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly refuse his leave application.’

7)  Grounds of appeal

10.  The applicant in the notice of appeal stated :

‘ I am not agree with the decision of the court, because the court did not consider my leave application for judicial review. I will face hardship life if I return back to my home country. The Torture Claims Appeal Board is not officially recognized. It is just a simply hearsay.’

8)  Our view

11.  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 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 that the decision was otherwise plainly wrong : see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

12.  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Director’s Decision of the subsequent claim.  We agree with the Judge’s decision.

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