上訴法庭（民事）Chu VP and Barnes J7/4/2025[2025] HKCA 320
CACV393/2024
A A
B CACV 393/2024, [2025] HKCA 320 B
On appeal from [2024] HKCFI 2240
C C
IN THE HIGH COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
COURT OF APPEAL
E E
CIVIL APPEAL NO. 393 OF 2024
F (ON APPEAL FROM HCAL NO. 1703 OF 2020) F
G G
H RE SHAHZAD MUHAMMAD Applicant H
I
__________________________ I
J
Before: Hon Chu VP and Barnes J in Court J
Date of Judgment: 8 April 2025
K K
________________
L L
JUDGMENT
________________
M M
N Hon Chu VP (giving the Judgment of the Court): N
O O
1. This is the applicant’s appeal against the decision of Deputy
P High Court Judge Lung (“the Judge”) given on 12 September 2024 1 P
refusing to extend time for him to apply for judicial review and dismissing
Q Q
his application for leave to apply for judicial review against the decision
R dated 22 May 2020 of the Torture Claims Appeal Board (“the Board”) R
dismissing his appeal against the decision dated 2 December 2016 of the
S S
Director of Immigration (“the Director”) which rejected the applicant’s
T non-refoulement claim. T
U 1
U
[2024] HKCFI 2240
V V
A - 2 - A
B 2. By a letter received by this Court on 2 December 2024, the B
applicant requested to be granted bail. As indicated in the Court’s reply
C C
on the same day, this was not a matter that could be dealt with by this Court
D and by way of letter. D
E E
3. The appeal was scheduled to be heard on 25 March 2025.
F
On 27 February 2025, the Director informed the Court that the applicant F
has been removed from Hong Kong under a deportation order on 14
G G
January 2025. Accordingly, the hearing date was vacated and we have
H
proceeded to consider the appeal on paper. H
I The applicant’s claim I
J J
4. The applicant is a national of Pakistan, aged 43. He entered
K Hong Kong illegally and was arrested by the police on 23 June 2009. On K
26 June 2009, he lodged a non-refoulement claim on the basis that, if
L L
refouled, he would be harmed or killed by the family of his friend Qamal,
M who accused him of murdering Qamal in 2009 because he brought Qamal M
to see his friend Qaisar, in the course of which Qamal was shot dead. The
N N
applicant left Pakistan for Hong Kong to avoid being pursued by Qamal’s
O family. The details of his claim were set out at [9] to [10] of the O
Director’s 1st Decision.
P P
Q
The decisions of the Director and the Board Q
R 5. By a Notice of Decision dated 19 May 2015, the Director R
rejected the applicant’s non-refoulement claim having regard to the torture
S S
T T
U U
V V
A - 3 - A
B risk2, BOR 3 risk3 and persecution risk4 (“Director’s 1st Decision). The B
applicant appealed against the Director’s 1st Decision to the Board, but he
C C
filed the notice of appeal/petition late. His late application was assessed
D and refused by the Board on 8 October 2015. D
E E
6. By a Further Notice of Decision dated 2 December 2016, the
F
Director further assessed the applicant’s claim having regard to the BOR F
2 risk 5
ground (“Director’s 2 nd
Decision”). The applicant appealed
G G
against the Director’s 2 nd Decision to the Board. A hearing was
H
scheduled for 18 December 2019 but the applicant was absent. The H
Board wrote to the applicant to invite explanation for his absence. The
I I
applicant did not respond. The Board therefore proceeded to determine
J his appeal on paper. J
K 7. By a decision given on 22 May 2020, the Board dismissed his K
appeal. In gist, the Board found the applicant’s account of threats was
L L
based on hearsay without any supporting evidence. The alleged threats
M and demand for monetary compensation from Qamal’s family did not M
engage any issues of BOR 2 risks as the applicant was not a wanted
N N
criminal and he was not facing any impending punishment in his home
O O
country. Even if the applicant would face criminal charges in Pakistan,
he would have to go through the proper judicial procedure and there was P
P
no evidence to show that he would be deprived of a fair trial. The Board
Q
Q
considered that the claim that Qamal’s family was seeking monetary
R
compensation against the applicant indicated that they had no intention to R
2
S This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under S
Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
3
This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3
T of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383). T
4
This refers to the risk of persecution with reference to the non-refoulement principle under
Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
5
U This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the U
Hong Kong Bill of Rights Ordinance (Cap 383).
V V
A - 4 - A
B kill him. Further, the Board also accepted the Director’s assessment that B
state protection is available to the applicant in Pakistan. The Board
C C
concluded that the applicant failed to provide any evidence indicating that
D he would face a genuine and substantial risk of being subjected to D
irreparable harm in Pakistan.
E E
F
The Judge’s decision F
G 8. The applicant filed a Form 86 and a supporting affirmation G
on 24 August 2020 to seek leave to apply for judicial review against the
H H
decision of the Board dated 22 May 2020.
I I
9. Order 53 rule 4(1) of the Rules of the High Court Cap.4A
J J
requires an application for leave to apply for judicial review be made
K promptly and in any event within three months from the date when grounds K
for the application first arose.
L L
10. The applicant’s application was two days late. The
M M
applicant did not provide any ground for seeking relief or explanation for
N his delay. He only stated in his affirmation that he was not satisfied with N
the Director’s decision and that it was still dangerous for him to return to
O O
Pakistan.
P P
11. The Judge heard the application at a hearing held on 31 July
Q Q
2024. By his judgment dated 12 September 2024, the Judge refused to
R extend the time for the applicant to apply for judicial review and dismissed R
his leave application. Principally, the Judge considered that the intended
S S
judicial review enjoyed no realistic prospect of success in that the applicant
T could not satisfactorily explained his absence before the Board and the T
Board was justified to deal with his appeal on the papers, and the applicant
U U
V V
A - 5 - A
B has not raised any valid challenge to the Director’s decision which was B
adopted by the Board.
C C
The appeal
D D
E 12. By a Notice of Appeal filed on 24 September 2024, the E
applicant sought to appeal the Judge’s decision to this court. In the
F F
Notice of Appeal, the applicant stated that the Judge’s decision was
G reached unfairly without giving him the opportunity to clarify his case. G
In the grounds of appeal attached to the Notice of Appeal, the applicant
H H
quoted extensively the trite propositions from decisions on high standards
I of fairness and Wednesbury unreasonableness, and repeated his personal I
background, immigration history and the basis of his claim. He also
J J
stated that he had previously failed to report to the Immigration
K Department because of his haemorrhoids condition. K
L L
Our reasons for decision
M M
13. In an appeal against refusal of leave to apply for judicial
N review in non-refoulement cases, the Court of Appeal would only examine N
the decision of the judge in light of the grounds advanced by the applicant.
O O
If no viable ground is put forward to reverse the judge’s decision, the
P appeal should be dismissed. The Court of Appeal’s role is not to examine P
Q
the Board’s decision afresh as if it is a fresh application for judicial review: Q
see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].
R R
14. Further, it is well established that the assessment of evidence,
S S
COI, risk of harm, state protection and viability of internal relocation are
T primarily within the province of the Board and the Director as they are the T
primary decision makers. The Court, in its supervisory role, will not
U U
V V
A - 6 - A
B intervene by way of judicial review unless there are errors of law, B
procedural unfairness or irrationality in the decision of the Board: Re
C C
Kartini [2019] HKCA 1022.
D D
15. We are of the view that the matters raised in the Notice of
E E
Appeal and the grounds of appeal attached to it do not constitute viable
F
grounds of appeal. Firstly, they are general propositions of law without F
pointing to any particulars or specificity as to any errors in the Judge’s
G G
decision and his reasons. Secondly, contrary to the applicant’s assertion
H
that the decision was reached unfairly, he was in fact given the opportunity H
to clarify his case and the latest situation as regards his enemies and his
I I
family at a hearing before the Judge. Thirdly, the Board had rejected his
J claim on the basis that it did not engage issues of BOR 2 risk. In both the J
Form 86 and the supporting affirmation, the applicant has not identified
K K
any error in the Board’s assessment of the evidence and its findings, or any
L irrationality or procedural irregularity. In the circumstances, the Judge’s L
decision to dismiss the application for leave to apply for judicial review
M M
cannot be faulted. For the above reasons, the applicant’s appeal is devoid
N of merits. Accordingly, we dismiss the appeal. N
O O
16. On 27 February 2025, the Director informed the Court that
the applicant has been removed from Hong Kong to his home country. We P
P
therefore direct that a copy of this judgment be served on the Director with
Q Q
a request that he uses his best endeavour to bring it to the notice of the
R
applicant. R
S S
(Carlye Chu) (Judianna Barnes)
T T
Vice President Judge of the Court of First Instance
U The applicant, unrepresented, acted in person. U
V V
A A
B CACV 393/2024, [2025] HKCA 320 B
On appeal from [2024] HKCFI 2240
C C
IN THE HIGH COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
COURT OF APPEAL
E E
CIVIL APPEAL NO. 393 OF 2024
F (ON APPEAL FROM HCAL NO. 1703 OF 2020) F
G G
H RE SHAHZAD MUHAMMAD Applicant H
I
__________________________ I
J
Before: Hon Chu VP and Barnes J in Court J
Date of Judgment: 8 April 2025
K K
________________
L L
JUDGMENT
________________
M M
N Hon Chu VP (giving the Judgment of the Court): N
O O
1. This is the applicant’s appeal against the decision of Deputy
P High Court Judge Lung (“the Judge”) given on 12 September 2024 1 P
refusing to extend time for him to apply for judicial review and dismissing
Q Q
his application for leave to apply for judicial review against the decision
R dated 22 May 2020 of the Torture Claims Appeal Board (“the Board”) R
dismissing his appeal against the decision dated 2 December 2016 of the
S S
Director of Immigration (“the Director”) which rejected the applicant’s
T non-refoulement claim. T
U 1
U
[2024] HKCFI 2240
V V
A - 2 - A
B 2. By a letter received by this Court on 2 December 2024, the B
applicant requested to be granted bail. As indicated in the Court’s reply
C C
on the same day, this was not a matter that could be dealt with by this Court
D and by way of letter. D
E E
3. The appeal was scheduled to be heard on 25 March 2025.
F
On 27 February 2025, the Director informed the Court that the applicant F
has been removed from Hong Kong under a deportation order on 14
G G
January 2025. Accordingly, the hearing date was vacated and we have
H
proceeded to consider the appeal on paper. H
I The applicant’s claim I
J J
4. The applicant is a national of Pakistan, aged 43. He entered
K Hong Kong illegally and was arrested by the police on 23 June 2009. On K
26 June 2009, he lodged a non-refoulement claim on the basis that, if
L L
refouled, he would be harmed or killed by the family of his friend Qamal,
M who accused him of murdering Qamal in 2009 because he brought Qamal M
to see his friend Qaisar, in the course of which Qamal was shot dead. The
N N
applicant left Pakistan for Hong Kong to avoid being pursued by Qamal’s
O family. The details of his claim were set out at [9] to [10] of the O
Director’s 1st Decision.
P P
Q
The decisions of the Director and the Board Q
R 5. By a Notice of Decision dated 19 May 2015, the Director R
rejected the applicant’s non-refoulement claim having regard to the torture
S S
T T
U U
V V
A - 3 - A
B risk2, BOR 3 risk3 and persecution risk4 (“Director’s 1st Decision). The B
applicant appealed against the Director’s 1st Decision to the Board, but he
C C
filed the notice of appeal/petition late. His late application was assessed
D and refused by the Board on 8 October 2015. D
E E
6. By a Further Notice of Decision dated 2 December 2016, the
F
Director further assessed the applicant’s claim having regard to the BOR F
2 risk 5
ground (“Director’s 2 nd
Decision”). The applicant appealed
G G
against the Director’s 2 nd Decision to the Board. A hearing was
H
scheduled for 18 December 2019 but the applicant was absent. The H
Board wrote to the applicant to invite explanation for his absence. The
I I
applicant did not respond. The Board therefore proceeded to determine
J his appeal on paper. J
K 7. By a decision given on 22 May 2020, the Board dismissed his K
appeal. In gist, the Board found the applicant’s account of threats was
L L
based on hearsay without any supporting evidence. The alleged threats
M and demand for monetary compensation from Qamal’s family did not M
engage any issues of BOR 2 risks as the applicant was not a wanted
N N
criminal and he was not facing any impending punishment in his home
O O
country. Even if the applicant would face criminal charges in Pakistan,
he would have to go through the proper judicial procedure and there was P
P
no evidence to show that he would be deprived of a fair trial. The Board
Q
Q
considered that the claim that Qamal’s family was seeking monetary
R
compensation against the applicant indicated that they had no intention to R
2
S This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under S
Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
3
This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3
T of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383). T
4
This refers to the risk of persecution with reference to the non-refoulement principle under
Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
5
U This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the U
Hong Kong Bill of Rights Ordinance (Cap 383).
V V
A - 4 - A
B kill him. Further, the Board also accepted the Director’s assessment that B
state protection is available to the applicant in Pakistan. The Board
C C
concluded that the applicant failed to provide any evidence indicating that
D he would face a genuine and substantial risk of being subjected to D
irreparable harm in Pakistan.
E E
F
The Judge’s decision F
G 8. The applicant filed a Form 86 and a supporting affirmation G
on 24 August 2020 to seek leave to apply for judicial review against the
H H
decision of the Board dated 22 May 2020.
I I
9. Order 53 rule 4(1) of the Rules of the High Court Cap.4A
J J
requires an application for leave to apply for judicial review be made
K promptly and in any event within three months from the date when grounds K
for the application first arose.
L L
10. The applicant’s application was two days late. The
M M
applicant did not provide any ground for seeking relief or explanation for
N his delay. He only stated in his affirmation that he was not satisfied with N
the Director’s decision and that it was still dangerous for him to return to
O O
Pakistan.
P P
11. The Judge heard the application at a hearing held on 31 July
Q Q
2024. By his judgment dated 12 September 2024, the Judge refused to
R extend the time for the applicant to apply for judicial review and dismissed R
his leave application. Principally, the Judge considered that the intended
S S
judicial review enjoyed no realistic prospect of success in that the applicant
T could not satisfactorily explained his absence before the Board and the T
Board was justified to deal with his appeal on the papers, and the applicant
U U
V V
A - 5 - A
B has not raised any valid challenge to the Director’s decision which was B
adopted by the Board.
C C
The appeal
D D
E 12. By a Notice of Appeal filed on 24 September 2024, the E
applicant sought to appeal the Judge’s decision to this court. In the
F F
Notice of Appeal, the applicant stated that the Judge’s decision was
G reached unfairly without giving him the opportunity to clarify his case. G
In the grounds of appeal attached to the Notice of Appeal, the applicant
H H
quoted extensively the trite propositions from decisions on high standards
I of fairness and Wednesbury unreasonableness, and repeated his personal I
background, immigration history and the basis of his claim. He also
J J
stated that he had previously failed to report to the Immigration
K Department because of his haemorrhoids condition. K
L L
Our reasons for decision
M M
13. In an appeal against refusal of leave to apply for judicial
N review in non-refoulement cases, the Court of Appeal would only examine N
the decision of the judge in light of the grounds advanced by the applicant.
O O
If no viable ground is put forward to reverse the judge’s decision, the
P appeal should be dismissed. The Court of Appeal’s role is not to examine P
Q
the Board’s decision afresh as if it is a fresh application for judicial review: Q
see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].
R R
14. Further, it is well established that the assessment of evidence,
S S
COI, risk of harm, state protection and viability of internal relocation are
T primarily within the province of the Board and the Director as they are the T
primary decision makers. The Court, in its supervisory role, will not
U U
V V
A - 6 - A
B intervene by way of judicial review unless there are errors of law, B
procedural unfairness or irrationality in the decision of the Board: Re
C C
Kartini [2019] HKCA 1022.
D D
15. We are of the view that the matters raised in the Notice of
E E
Appeal and the grounds of appeal attached to it do not constitute viable
F
grounds of appeal. Firstly, they are general propositions of law without F
pointing to any particulars or specificity as to any errors in the Judge’s
G G
decision and his reasons. Secondly, contrary to the applicant’s assertion
H
that the decision was reached unfairly, he was in fact given the opportunity H
to clarify his case and the latest situation as regards his enemies and his
I I
family at a hearing before the Judge. Thirdly, the Board had rejected his
J claim on the basis that it did not engage issues of BOR 2 risk. In both the J
Form 86 and the supporting affirmation, the applicant has not identified
K K
any error in the Board’s assessment of the evidence and its findings, or any
L irrationality or procedural irregularity. In the circumstances, the Judge’s L
decision to dismiss the application for leave to apply for judicial review
M M
cannot be faulted. For the above reasons, the applicant’s appeal is devoid
N of merits. Accordingly, we dismiss the appeal. N
O O
16. On 27 February 2025, the Director informed the Court that
the applicant has been removed from Hong Kong to his home country. We P
P
therefore direct that a copy of this judgment be served on the Director with
Q Q
a request that he uses his best endeavour to bring it to the notice of the
R
applicant. R
S S
(Carlye Chu) (Judianna Barnes)
T T
Vice President Judge of the Court of First Instance
U The applicant, unrepresented, acted in person. U
V V