RE RASHPAUL CHAND

CACV 59/2019

[2019] HKCA 765

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 59 OF 2019

(ON APPEAL FROM HCAL 1006/2018)

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JUDGMENT

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Hon Lisa Wong J (giving the Judgment of the Court):

Application

1.  Before the court is a notice of motion filed on 5 June 2019 by the abovenamed applicant, applying for leave to appeal to the Court of Final Appeal (“CFA”) against the judgment dated 4 June 2019[1] (“Judgment”) of the Court of Appeal (Yeung Ag CJHC and Lisa Wong J), dismissing the applicant’s appeal from Deputy High Court Judge K W Lung’s decision dated 31 January 2019[2] refusing him leave to apply for judicial review of the decision dated 1 June 2018 of the Torture Claims Appeal Board (“Board”) in respect his non-refoulement claim.

Paper disposal appropriate

2.  Pursuant to the direction of the Registrar of Civil Appeals, unless this court otherwise directs, the notice of motion shall be determined on paper without an oral hearing. We agree with the Registrar that a paper disposal is appropriate in this case.

Statutory threshold for leave to appeal to the CFA

3.  Section 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484), an appeal owevershall lie to the CFA at the discretion of the Court of Appeal (“CA”) or the CFA, from any judgment of the CA in any civil cause or matter, whether final or interlocutory, if, in the opinion of the CA or the CFA, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the CFA for decision.

Applicant’s contentions in support of leave to appeal to CFA

4.  First, the applicant asserted in the notice of motion (sic):

“I am not satisfied with the decision given by the Director of immigration because its not fair and transparent. This decision is far away from the facts which (illegible) with my case. Please keep me to stay here so that I can save my life.”

5.  Second, the written submission lodged by the applicant on 18 June 2019 read as follows (sic):

“My name is Rashpaul Chand and my case no.is CACV 59/2019 and iam an asylum seeker from india.iam not satisfied with the decision given the Director of immigration and Torture claim appeal board.

This decision given by them is not fair and away from facts because the sitution in my state of other communitues except muslim is very merciful

Iam an non muslim and majority of population in my state is muslim and they always attacked on other people who belong to other religion.Many terroist organization are active there.

Killing innocent people by terroist who are mostly supported by pakistan are very comman.Its very hard to live there

Many people already moved to some other places some are moved to abroad because mass killing of our people by traiters and terroist are so comman

You can check by news paper and from net also about the condition of my state.Many people are missing and many are brain washed

They abduct many people and bring them to pakistan and trained them as brainwashed terroist.I was lucky to escaped from there.

Appeal board should check all thes fact before giving decision but all these facts are ignored by them.

We are living in great fear any time anything can happen.Everyday and even each and every minute something happened there.These pakistani supported terriost making life hell and no one save because these people attack always from behind.

Please help me to stay in Hong kong until i have these problem iam fear if I return to my country I may tortured or killed..because i dont have enough sources to protect myself..

I hope you wil understand my problem and wil give me your kind favour sothat i can save my life.iam looking towards your kind attention over my application.

Now i left hope only from you .Becauae at this moment i cant go back to my country.iam looking towards your kind attenton

I hope you will give me your kind favour so that i can save my life .please help me to stay in Hong kong untill i have problem in my country.i will be very thankful to you for your kindness.”

Discussion

6.  The applicant has not by the aforesaid notice of motion or written submission raised any issue for determination by the CFA, whether of great, general or public importance or otherwise.

7.  Nor do we see any basis to grant leave under the “or otherwise” limb.

(1)   The bare complaint of dissatisfaction with the decisions made by the Director of Immigration and the Board and the mere repetition of the allegation of fear of being harmed by Pakistani terrorists upon his return to India, which allegation had already been dismissed by the Board as incredible (partly due to the applicant’s own sudden refusal to answer the Board’s questions about his case half way through the hearing before the Board), do not constitute grounds of appeal, properly so called.

(2)   In particular, the applicant has not engaged the reasons we set out in the Judgment for dismissing his appeal against the Judge’s refusal of leave for judicial review of the Board’s decision at all. 

(3)   Not only has he completely ignored those reasons, he has seen fit to just repeat in the notice of motion and written submission the contents of the notice of appeal and written submission that he previously placed before us.

(4)   The proposed appeal to the CFA is utterly devoid of merit.

8.  Neither of the statutory criteria under s 22(1)(b) for leave to appeal to the CFA is met.  Accordingly, we dismiss the notice of motion.