MAHALINGAM SILAMBARASAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 195/2019

[2019] HKCA 1128

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 195 OF 2019

(ON APPEAL FROM HCAL NO 1038 OF 2017)

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J U D G M E N T

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Hon Kwan VP (handing down the Judgment of the Court):

1.  This is the applicant’s application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 16 August 2019 ([2019] HKCA 922) dismissing his appeal against the decision of Campbell-Moffat J dated 12 April 2019 ([2019] HKCFI 329) refusing leave to apply for judicial review of the decision of the Torture Claims Appeal Board(“the Board”) concerning his non‑refoulement claim.

2.  The applicant filed a notice of motion on 28 August 2019 for leave to appeal to the Court of Final Appeal and lodged his written submission on 10 September 2019.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 2 September 2019 that the notice of motion shall be determined on paper only without an oral hearing.  We think it appropriate to do so and will determine this application on paper.

The grounds of appeal

3.  The grounds of appeal as stated in the notice of motion and the applicant’s written submission may be summarized as follows:

(1)  The Director of Immigration (“the Director”) and the Board failed to take into account the following facts:

(a)  The applicant received death threats from his enemies and they are still looking for him to take revenge.  His life is too dangerous.  His family members regularly received threat from his enemies and they are forced to disclose his whereabouts.  His enemies still want to kill him. 

(b)  His claim is based on a true story of his life and the decision maker did not observe his fear so well.  Even if the risk he faced may be considered private concerning a personal dispute, his life would be too risky if he returns to his country.

(c)  He has been placed in severe mental distress as a result of being targeted for killing and the fear of being traced even if he goes into hiding in India.  He could not get any protection from the authorities.

(2)  His claim is not a private and personal matter. The decision maker failed to consider his claim under BOR 2 risk and BOR 3 risk, whether as a person he would face genuine risk upon refoulement.

(3)  The Director and the Board failed to make sufficient inquiries into the country of origin conditions of his claim and adopted a passive approach in contravention of the high standards of fairness.

Discussion and disposition

4.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that 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.

5.  The applicant’s grounds of appeal do not raise any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination.  Besides, there is no reasonably arguable ground for reversing the judgment of the Court of Appeal on any of the proposed grounds of appeal.  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

6.  We therefore dismiss the application for leave to appeal to the Court of Final Appeal.