RE ARAFIN MOHAMMED AZADUL

CACV 173/2019

[2019] HKCA 1154

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 173 OF 2019

(ON APPEAL FROM HCAL 431/2018)

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J U D G M E N T

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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 24 September 2019 by the abovenamed applicant, applying for leave to appeal to the Court of Final Appeal (“CFA”) against this court’s judgment dated 10 September 2019 ([2019] HKCA 958) (“Judgment”), dismissing the applicant’s appeal from a decision dated 4 April 2019 ([2019] HKCFI 408) (“Judge’s Decision”) by Deputy High Court Judge Bruno Chan, refusing him leave to apply for judicial review of the decision dated 1 March 2018 (“Board’s Decision”) of the Torture Claims Appeal Board (“Board”) concerning his non-refoulement claim (“NRF 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.  Under s 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484), an appeal shall 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.  In seeking leave to appeal to the CFA, the applicant firstly asserted in the notice of motion as follows (sic):

“THE HONOURABLE JUDGES OF THE COURT OF APPEAL GIVE AN ORDER ON 10 SEPTEMBER 2019 WHICH WAS TOTALY ONE SIDED ORDER. THE ORDER WAS TOTALY WASHED ORDER. I DID NOT GET JUSTICE. SO IF I LOSE TOTAL TORTURED PEOPLE OF INDIA LOSE, BECAUSE I AM THE REPRESENTATIVE OF THOSE PEOPLE. ALL OVER THE WORLD ALL THE LAW FOR OPPRESSED BUT HONG KONG JUDGES ARE NOT FOR OPPRESSED PEOPLE.

I WILL GO TO THE COURT OF FINAL APPEAL AS A MAN OF OPPRESSED PEOPLE. FOR THE GREAT INTEREST OF OPPRESSED SOCIETY I SHOULD WIN THE CASE. IF I LOSE TOTAL OPPRESSED PEOPLE WILL LOSE.

NOBODY WILL SAY ANY WORLD AGAINST CREMINALS.”

5.  Then the applicant contended the following in his written submission filed on 8 October 2019 (sic):

“… I HAD A BIG POLITICAL PROBLEM IN INDIA. I AM A BOY OF MINORITY. I AM MUSLIM IN FAITH. HINDUS ARE THE MEJORITY. FROM MY CHILDHOOD I LISTEN THOSE MEJORITY HINDUS ALWAYS GAVE US PROBLEM. BUT NOW A COMUNAL GOVERNMENT ARE IN POWER. ANYHOW THIS BARATIO JANATA PARTY WILL THROW ALL MUSLIM OUT OF INDIA. BECAUSE THEY NEED SUPPORT OF HINDU COMMUNITY. ON THE NAME OF NRC THE PRESENT GOVERNMENT TAKE BACK 119 MILLION INDIAN CITIZENSHIP. BUT THIS 119 MILLION PEOPLE LIVE IN INDIA 50 YEARS. NOW GOVERNMENT KEEP THIS BIG PEOPLE IN A CAMP.

I AM ONE OF THEM. MY FAMILY IS INCLUIDNG WITH THEM. ALL MY FAMILY WILL GO TO THE REFUGEE CAMP. THEN WHERE IS MY MOTHER LAND? CAN I TELL INDIA IS MY COUNTRY. INDIAN GOVERNMENT POLICY IS KICK ALL OF US FROM INDIA.

SO I REQUEST THE COURT TO SEND MY CLAIM TO THE COURT OF FINAL APPEAL FOR MY GOOD RESULT.”

Discussion

6.  The applicant has plainly not raised any issue for determination by the CFA, whether of great, general or public importance or otherwise by either his notice of motion or written submission.  Nor do we see any scope to grant leave under the “or otherwise” limb as the proposed appeal to the CFA has no merit whatsoever.

7.  First, each non-refoulement claim was vetted by the Director of Immigration and the Board under the Unified Screening Mechanism; each application for leave to apply for judicial review of the Board’s decision was considered by a judge of the Court of First Instance; and each appeal from a refusal of leave for judicial review was determined by the CA, all on a case by case basis.  The successive dismissals of the NRF Claim, the application for leave to apply for judicial review of the Board’s Decision and the appeal from the Judge’s Decision in the applicant’s case are no exception.  The applicant’s failure to obtain non-refoulement protection will therefore have no impact whatsoever on similar claims by other “tortured people” or “oppressed people” of India or elsewhere.  The applicant does not raise any issue of great, general or public importance by appointing himself a representative of such people, as he purportedly did in the notice of motion. 

8.  Second, with regard to the marginalisation and ill-treatment of the Muslim population by the Indian government alleged by the applicant in his written submission, it is not open for the applicant to raise new factual matters not canvassed before for the purpose of obtaining leave to appeal to the CFA.  In this regard, as summarised in [2] of the Judgment, the NRF Claim with which the Director, the Board, the Judge and the CA were concerned was premised upon a fear of harm arising from a private dispute between the applicant and his creditor due to the applicant’s failure to repay a loan after he had allegedly lost all the money he had borrowed while he was in Hong Kong in April 2006.

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