RE ATIF MUHAMMAD

CACV 299/2023 , [2024] HKCA 726

On Appeal From [2023] HKCFI 2380

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 299 OF 2023

(ON APPEAL FROM HCAL NO. 1056 OF 2019)

________________________

________________________

________________________

J U D G M E N T

________________________

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 To of 20 September 2023 in which he refused to grant leave to the applicant to apply for judicial review.  The applicant consented to his appeal being disposed of on paper in a written confirmation filed on 25 September 2023.

2.  The applicant lodged the skeleton argument late by a day.  The delay was insignificant and we will consider the applicant’s written submission. 

2)  Factual background

3.  The applicant is a national of Pakistan.  The applicant was arrested by the police on 6 October 2018 for being a suspected illegal immigrant.  It is not clear when he had departed Pakistan, nor on what day he had come to Hong Kong.  On 10 October 2018, 16 and 17 December 2018, the applicant applied for non-refoulement protection on all applicable grounds[1].

4.  The basis of the applicant’s claim is that he would be harmed or killed by people of the Pakistan Muslim League-N party (‘PMLN’)  because he had refused to change allegiance from supporting the Pakistan Tehreek-e-Isaaf (‘PTI’)  into supporting the PMLN at the demand of the latter people[2].  

5.  The background facts have been summarized in the decision of the Judge at [3]-[10].

3)  The Director’s Decision

6.  The Director of Immigration (‘the Director’)  decided against the applicant’s non-refoulement claim on 15 February 2019.  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

7.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  The applicant elected not to have an oral hearing before the Board[4].  The Board dismissed the applicant’s appeal on 12 April 2019 (‘the Board’s Decision’).

8.  The Board’s reasoning and decision have been summarized in the decision of the Judge at [11] to [21].

5)  Decision of the Judge

9.  The applicant filed his Form 86 supported with an affirmation which only annexed a copy of the Board’s decision.

10.  The Judge held that as the applicant did not want to hold a hearing before the Board, it determined the applicant’s appeal without a hearing.  The Board found the applicant’s case fatally tainted with numerous vagueness to which no credence could be placed.  The applicant failed to show entitlement to non-refoulement.  The Board found the applicant incredible.  Though the Board did not invite the applicant to a hearing, it did further assess the applicant’s claim based on all applicable grounds including BOR 3 and 2, and convention risks including torture and persecution.  The Board found that even accepting the applicant’s case in total the evidence still fell short of proving the applicant’s claim under all four applicable grounds.  No real risk or minimum level of severity based on the evidence was able to be shown before the Board.  There was no evidence of state involvement[5].

6)  Grounds of appeal

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

‘ I am a boy from Pakistan. I arrived Hong Kong illegally from China. I have life threat in Pakistan. I raised a nonrefoulement claim but my Immigration Officer and the Adjudicator of Torture Claims Appeal Board did not grant my claim. I came to the High Court for leave but unfortunately my Honourable Judge dismissed. I request to grant my leave.’

12.  In the applicant’s written submission, the following was stated in summary :

(1)  The applicant is a Sunni Muslim and he will suffer harm from the opposing political party members if refouled;

(2)  In the first incident, the applicant heard shots outside his house fired for around ten minutes, and the attackers hit the applicant with the handle of their guns causing him serious injuries.  The applicant was hospitalized for a month and it took two more months to recover;

(3)  There was a total of five incidents that happened to the applicant.  The applicant believed that his life was at risk.  The applicant moved to another city in Pakistan and then moved to Hong Kong;

(4)  The case officer and the Board did not believe the applicant’s statement;

(5)  The High Court dismissed the applicant’s claim; and

(6)  The applicant requests the Court of Appeal to grant him leave.

7)  Our view

13.  We are of the view that the applicant’s documents consist of bare allegations without particulars or specifics.  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 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 Deputy Judge in assessing the Board’s Decision.

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