RE KHAN ASFAGUE

CACV 431/2019

[2020] HKCA 497

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 431OF 2019

(ON APPEAL FROM HCAL 826/2018)

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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 7 May 2020 by the abovenamed applicant, applying for leave to appeal to the Court of Final Appeal (“CFA”) against this court’s judgment dated 22 April 2010 ([2020] HKCA 106) (“Judgment”), dismissing the applicant’s appeal from a decision dated 4 September 2019 ([2019] HKCFI 2168) by Deputy High Court Judge Josiah Lam, refusing him leave to apply for judicial review of the decision dated 13 April 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 (“Registrar”), 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 civil judgment of the CA if 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 asserted in the notice of motion as follows (sic):

“I would like to infomr the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL Information and my previous facts which were in favor while rejecting my claim. Acual life occur different situation then what is mentioned in COL information. The Officer and cours prefers to ignore the overwheming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

5.  In breach of paragraph 1 of the Registrar’s directions dated 14 May 2020, the applicant has not filed any written submission in support of the notice of motion.  We shall decide this application on the basis of the notice of motion.

Discussion

6.  The applicant has plainly not raised any issue for determination by the CFA, whether of great, general or public importance or otherwise.

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

8.  Insofar as the applicant suggested in the notice of motion that the officers of the Immigration Department and the adjudicators of the Board involved in the screening of non-refoulement claims and the judges involved in determining the judicial proceedings arising therefrom have approached their tasks with a pre-disposition for dismissal with reference only to generic country of origin information (“COI”) without regard to the particular facts and evidence of the cases before them, the applicant has not advanced any or any proper basis for so suggesting. 

9.  To the contrary, a review of the notice of decision dated 23 January 2017 of the Director of Immigration (“Director”) and the Board’s Decision shows that any such suggestion by the applicant is most unfair.

(1)     It is clear from the Director’s detailed summary of the factual information provided by the applicant in his non-refoulement claim form dated 18 July 2016 and at the screening interview on 29 August 2016 (see [8] at pages 3 to 7) that the Director did have regard to the particular facts upon which the NRF Claim was grounded.  In rejecting the NRF Claim, as summarised in [7(1)] of the Judgment, the Director primarily found that the matters alleged by the applicant to indicate no or no real future risk of harm to the applicant upon his return to India.  The further findings of availability of reasonable state protection and reasonable internal relocation options were secondary reasons for rejecting the NRF Claim.  Although they were made with reference to COI, the applicant did not pinpoint which parts of such COI do not accurately reflect the situation in India, as he complained in the notice of motion.  We are particularly perplexed by the reference to “violence towards minorities”. The NRF Claim was not at all premised upon the applicant belonging to any abused minority group.  The applicant’s fear of harm stemmed purely from a private monetary dispute.

(2)     Regarding the Board, as noted in [11] and [12] of the Judgment, the Board rejected the applicant’s account of events.  In doing so, the Board did provide detailed and sound reasons to explain why it disbelieved the applicant: see [95]-[121] of the Board’s Decision. 

10.  As for the courts’ role, we have already explained in [19] and [20] of the Judgment that a judicial review is not a channel for a reconsideration of facts.  The Court of First Instance (“CFI”) will scrutinise the Board’s decision for any errors of law, procedural unfairness or irrationality while the CA will examine the CFI judge’s decision in light of the grounds of appeal advanced by the applicant, which should be premised upon the CFI judge having erred in law, omitted to consider a relevant matter or been otherwise plainly wrong.

11.  Neither the notice of motion nor the applicant’s written submission has really engaged the reasons given in the Judgment.

12.  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.