RE SK ASGAR ALI

CACV 270/2018

[2019] HKCA 196

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 270 OF 2018

(ON APPEAL FROM HCAL 739/2017)

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RE:

SK ASGAR ALI

Applicant

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Before:

Hon Yuen, Chu and Barma JJA in Court

Date of Judgment:

26 February 2019

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  On 31 October 2018, this court (Yuen and Barma JJA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the judge”) on 19 June 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decision of the Director of Immigration rejecting his non‑refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicant subsequently applied, by a notice of motion dated 12 November 2018, for leave to appeal to the Court of Final Appeal.  The applicant stated in his notice of motion that he will be killed upon his return to India.  He repeated the events giving rise to his non-refoulement claim.  He submitted that the Board and the Director of Immigration made a number of errors in their decisions but he did not identify any error in our judgment dated 31 October 2018.

4.  In compliance with the directions of the court, the applicant lodged a written submission in support of his application on 26 November 2018.  In his written submission, the applicant reiterated the matters raised in the Notice of Motion.  He further submitted that the Indian government is corrupt and that the Muslims in India face persecution.

5.  Having considered the applicant’s notice of motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of his notice of motion and written submission.

6.  The matters stated by the applicant in his notice of motion and written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised in his notice of motion and his written submission.  The applicant failed to identify any error in our judgment dated 31 October 2018.  Further, the matters raised in the Notice of Motion and his submissions were not relied upon in the Notice of Appeal.  As we have explained before, it is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it;[2] nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[3]

7.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

8.  For these reasons, the notice of motion dated 12 November 2018 is dismissed.

 
 

(Maria Yuen)	(Carlye Chu)	(Aarif Barma)
Justice of Appeal	Justice of Appeal	Justice of Appeal

  

The applicant acting in person

CACV 270/2018

[2018] HKCA 775

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 270 OF 2018

(ON APPEAL FROM HCAL 739/2017)

-----------------------------------

RE

SK ASGAR ALI

Applicant

-----------------------------------

Before:

Hon Yuen JA and Barma JA in Court

Date of Hearing:	24 October 2018
Date of Handing Down Judgment:	31 October 2018

___________________

J U D G M E N T

___________________

Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock given on 19 June 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 29 September 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 23 January 2017 rejecting the applicant’s non-refoulement claim. The Director of Immigration was also named as a proposed respondent.

Background

2.  The applicant is a national of India.  He and his wife entered Hong Kong on 16 June 2015 and they were permitted to remain until 30 June 2015.  They both overstayed and surrendered to the Immigration Department on 3 July 2015.  Thereafter, the applicantlodged a non-refoulement claim on 9 December 2015.  Her wife also lodged a non-refoulement claim which she subsequently withdrew.

3.  The applicant’s claim was based on threats from 2 men in India, one an alleged suitor of his wife and the other an alleged business creditor.  The facts relating to the applicant’s claim have been summarised by the judge at [2] to [4] of the CALL-1 Form.

4.  By a Notice of Decision dated 23 January 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 7 August 2017, the Board found the applicant’s case not to be credible, and held that the applicant’s fear of harm was not well founded ([71] of the Board’s Decision).  The Board dismissed the appeal on 29 September 2017 (“Board’s Decision”).

The deputy judge’s decision

6.  The applicant filed a Form 86 on 9 October 2017 which contained no ground for seeking relief. 

7.  In the affirmation in support of the leave application dated 9 October 2017, the applicant advanced various grounds for judicial review against the Director and the Board which are summarised below:

(1)   failure to conduct a critical analysis of country of origin information (COI);

(2)   failure to provide any justification as to why some COI material was preferred;

(3)   cherry-picking COI;

(4)   failure to provide adequate reason as to why the applicant will not face any real risk upon refoulement;

(5)   a failure to consider the concept of extended state acquiescence.

8.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [11] to [14] of the CALL-1 Form:

“11. There were no particulars to support any of the grounds. During the oral hearing that the applicant had requested, he had nothing to add to his affirmation or application except that his wife who had returned to India told him that loan sharks were still coming to the applicant’s home threatening his life because he had failed to repay his debt.

12. The adjudicator did not consider Country of Origin information nor make a finding on State protection or State acquiescence. In light of his finding that the applicant was not a genuine claimant and faced no risk if refouled, there was no need for him to conduct that exercise. There was no merit in the above grounds.

13. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. He has meticulously analysed the applicant’s evidence and given full reasons for his finding that the applicant is not a genuine claimant. I will not interfere with his decision. I find no substance in the grounds of this application; they are not particularised or substantiated. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable. In fact, the same applies to the decision of the Director.

14. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

Grounds for appeal

9.  In the Notice of Appeal dated 27 June 2018 the only ground given by the applicant was that:

“There is an appeal for the decision of legal aid and would like the case to be adjudged when that is over”

10.  In his 12-page skeleton submissions dated 26 September 2018, the applicant simply repeated [1] to [12] of the CALL-1 Form, asserted that his life would be at risk if he were returned to India, and suggested that the Director had simply taken COI from the internet.  He set out various orders sought, which were not mentioned in the Notice of Appeal.  He also made general and unparticularised complaints against the Director and the Board.  In a section dealing with the background to his claim, he included various pages of information several of which appeared to bear no relationship to his case.  It is apparent that he has just cobbled together documents from other cases and has not even read it before signing it.

11.  The applicant agreed by a letter of 29 June 2018 that the appeal can be heard by two judges.  We heard the appeal on 24 October 2018.

Discussion

12.  Neither the pending legal aid appeal nor the alleged danger to his life are viable grounds of appeal.  The Board disbelieved the applicant, and observed at [71] of the Board’s Decision that there is insufficient evidence to support the allegation that the applicant will face any real risk of harm upon his return.  The other points made at paragraph 9 on page 7 and paragraphs 8II to IV on page 8 of his submissions do not identify any error on the judge’s part, and consist of a list of unparticularsed complaints against the Director and the Board, which were different from the grounds for judicial review put forward before the judge below.  They do not constitute viable grounds of appeal either.   

13.  There is no merit in this appeal and we dismiss the appeal accordingly.

  
 

(Maria Yuen)	(Aarif Barma)
Justice of Appeal	Justice of Appeal

  

The applicant acting in person