Case Document

100%Judiciary

CACV 437/2018

[2019] HKCA 673

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 437 OF 2018

(ON APPEAL FROM HCAL 116/2018)

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RE:

AHMED WASI

Applicant

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Before: Hon Kwan VP, Barma and McWalters JJA in Court

Date of Judgment: 17 June 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 26 February 2019, this court (Kwan, Barma and McWalters JJA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the judge”) on 23 August 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 decisions 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 6 March 2019, for leave to appeal to the Court of Final Appeal. The applicant stated in his Notice of Motion that it is dangerous for him to return to India. He contended that the Indian police will find him because of his claim against moneylenders. The applicantattached to his Notice of Motion a document setting out various complaints against the decisions of the Director, the Board and the judge in the CFI. It did not identify any alleged errors on the part of this court.

4.Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 11 March 2019, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

5.Having considered the applicant’s Notice of Motion, 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.

6.The matters stated by the applicant in his Notice of Motion and the document attached to it 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.

7.In relation to the possibility of internal relocation within India, the Board concluded at [90] that “there is nothing in the evidence or COI to support [the assertion that the loan shark will be able to locate the applicant anywhere in India]. There is no reason to assume that because [the loan shark] is a man of influence in West Bengal his influence extends outside that state to the extent as to make him a danger to the [applicant] throughout the whole of India”. We have concluded at [16] that the judge was right in upholding the Board’s decision on internal relocation. In our view, the applicant’s complaint in the Notice of Motion is plainly not reasonably arguable before the Court of Final Appeal.

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

9.For these reasons, the Notice of Motion dated 6 March 2019 is dismissed.