RE BALWINDER RAM

CACV 278/2017

[2018] HKCA 284

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 278 OF 2017

(ON APPEAL FROM HCAL NO 180 OF 2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This Court (Lam VP and Chow J) handed down the judgment dismissing the appeal on 22 March 2018.

2.  On 28 March 2018, the applicant issued a Notice of Motion seeking leave to appeal to the Court of Final Appeal.

3.  Pursuant to Practice Direction 2.1, the applicant lodged submissions in support of his application on 27 April 2018. The written submissions reiterated the arguments on lack of legal representation and cited the judgment of the Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security FACV 15/2011.  He further placed emphasis on the lack of legal representation regarding assessment of BOR 2 risk.

4.  Notwithstanding the applicant’s request for oral hearing, we are of the view that this Motion, like most applications for leave to appeal to the Court of Final Appeal, can be disposed of on the papers.

5.  We reiterate [15] of the judgment of 22 March 2018:

“ Even now, the applicant did not state or outline what information regarding BOR 2 risk he wished to provide. On the facts of the case, we are of the view the assessment of BOR 2 risk could effectively be made on the same materials present on his behalf with the assistance of lawyers in other respects.”

6.  And this is to be read together with the assessment by the Director and the Board highlighted by us at [11] and [12] in that judgment:

“ 11. The Board found the evidence given by the applicant not credible (see §125(1) of the Board Decision).  Further, the Director and the Board had found that state protection is available (§15 of Director Decision and §118 of Board Decision).  There is no scope for finding risk of torture based on the concept of state acquiescence.

12. The finding of the Director and the Board (which the judge found no ground to disturb after rigorous and anxious scrutiny) was that there is no substantial ground for believing that the applicant would face a real risk of being subject to ill-treatments which meets the high threshold as required by law: see Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at [172] to [174].”

7.  We have assessed the merit of the appeal by reference to the facts of this case. It is a case and fact sensitive assessment.

8.  The relevant criteria for granting such leave are set out in Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance Cap 484:

“ An appeal shall lie to the Court [of Final Appeal] at the discretion of the Court of Appeal or the Court [of Final Appeal], from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court [of Final Appeal], 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 Court [of Final Appeal] for decision.”

9.  Having read the documents, we cannot find any basis for holding that leave to appeal should be granted pursuant to Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.  There is no question of great general or public importance in the intended appeal.  There is no reason for leave to be granted on the “otherwise” limb.

10.  The Notice of Motion of 28 March 2018 is dismissed.