RE SHASHANK

CACV 134/2019

[2019] HKCA 1155

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 134 OF 2019

(ON APPEAL FROM HCAL 1567/2018)

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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 20 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 957) (“Judgment”), dismissing the applicant’s appeal from a decision dated 14 March 2019 ([2019] HKCFI 612) by Deputy High Court Judge K W Lung (“Judge”), refusing him leave to apply for judicial review of the decision dated 26 July 2018 (“Board’s Decision”) of the Torture Claims Appeal Board (“Board”) concerning 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.  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 asserted in the notice of motion as follows (sic):

“ON 10 SEPTEMBER 2019 THE HONOURABLE JUDGES OF THE COURT OF APPEAL REFUSED MY APPEAL. DUE TO THIS DECISION I AM VERY SORRY. BECAUSE MY PROBLEM IN MY COUNTRY WILL NEVER BE SOLVED AND MY ENEMY IS VERY POWERFULL. IF I RETURN THEY WILL KILL ME. RELOCATION IS IMPOSSIBLE. AUTHORITY WILL NOT HELP ME. BUT MY CASE IS REFUSED. JUDGES DID NOT CONSIDER MY POINTS.”

5.  In breach of paragraph 1 of the directions given by the Registrar on 24 September 2019, the applicant failed to lodge any written submission in support of his notice of motion on or before 4 October 2019.  We shall determine 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.  Going through the brief notice of motion point by point:

(1)  First, the applicant’s disappointment with the Judgment, while natural, cannot be a ground for appeal to the CFA.

(2)  Second, with regard to his much repeated bare assertions that his enemies will kill him if he returns to India and that he cannot relocate within India, as explained at [18] of the Judgment, the assessment of matters such as risk of harm and viability of relocation is within the purview of the Director of Immigration (“Director”) and the Board as the primary fact finders under the Unified Screening Mechanism, with the court intervening by way of judicial review of the Board’s decision on appeal from the Director only in case of error of law, procedural unfairness or irrationality.  In this case, neither the Director nor the Board accepted that the applicant would face any or any real risk of any of the proscribed harms from his girlfriend’s family in India.  The Director further considered reasonable internal relocation alternatives to be available to the applicant to avoid or even negate the risk (if any).  The Board did not have to, and did not, deal with the relocation issue, given its said assessment of risk.  See [7] and [11] of the Judgment.  The applicant’s said assertions go against such findings.  Yet, none of the grounds proposed by the applicant for judicial review of the Board’s Decision had anything to do with the said adverse facts found by the Board.  See [13] of the Judgment.

(3)  Third, as for the allegation that we did not consider his points, as summarised in [15] to [17] of the Judgment, the applicant contended before us that the Judge had erred in law in holding that there was no state involvement; that he had failed to give detailed reasons and that he would face danger from his girlfriend’s family if he should return to India.  We believe we have fully considered addressed all these points at [18] to [21] of the Judgment.

8.  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.