Re Mohammad Javed

CACV 579/2019

[2020] HKCA 580

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 579 OF 2019

(ON APPEAL FROM HCAL 1231/2018)

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Before: Hon Kwan VP, Yuen JA and Lisa Wong J in Court

Date of Written Submission:  18 June 2020

Date of Judgment: 16 July 2020

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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 8 June 2020 by the abovenamed applicant, applying for leave to appeal to the Court of Final Appeal (“CFA”) against this court’s judgment dated 4 June 2020 ([2020] HKCA 430) (“Judgment”), dismissing the applicant’s appeal from a decision dated 11 December 2019 ([2019] HKCFI 2587) by Deputy High Court Judge Bruno Chan, refusing him leave to apply for judicial review of the decision dated 5 June 2018 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 (“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):

“Respected Sir/Madam its an my humble request to you that I have problem in own country please given me some time to stay here so that I can solve my problem. At this moment I can not go back to my home country because danger still there for me. Please allow me to process further my case. I will be great full to you.”

5.Pursuant to paragraph 1 of the Registrar’s directions dated 9 June 2020, on 18 June 2020, the applicant filed the following written submission in support of the notice of motion (sic): 

“My name is Muhammad javed and my case no.is CACV 579/2019 and iam an asylum seeker from pakistan I left my country because my life was under threat due to my enemies.

No one escape from them due to their power. please protect me from them and allow me to stay here until my problem will be solved. They can trace me anywhere. once they want to target someone than they must do it. I dont want to die from their hand.

Death and torture in police custody of innocent persons are so comman in my country and people who responsible for this are always enjoy freedom due to their power.

Even if sometime police arrest the culprits they can bribe to police and come out due to corrupt system. so how can comman can get justice in corrupt environment of our system.

So many things which need to see about my condition that how can I survive there if I return to country. I may be tortured or killed by them. Life of people like me is so tough.

No one have dare to stand and talk anything to them because almost all scared to them no body stand with me there and alone I’am nothing in front of them.

My enemies still looking about my whereabouts they always come to locate me and keep asking and warning regarding me that when ever they see me I will be killed by them.

I can’t survive there in front of them. I don’t have enough sources to protect myself there. Even police also can’t protect me from them. My enemies have lots of man power and strong political support which makes them so powerful.

Now I left hope only from you so that I can save my life. I hope you will give me your kind favour to protect my life. iam trying to sort out my problem with help of some persons but for this I need some more time.

I hope you will give me sometime to stay here until my problem will be solved. iam looking towards your kind attention over my application.

I hope i will get your kind favour.  I will be greatful to you for your help and attention.”

The above written submission is identical to that filed on 7 May 2020 in support of the appeal against the refusal of leave to apply for judicial review.

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.Neither the notice of motion nor the applicant’s written submission has really engaged the reasons given in the Judgment.  As noted in [11] and [21] of the Judgment, after hearing the applicant, the Board assessed the risk facing him in Pakistan to be low, especially if he stays away from his home village.  The applicant’s repeated bare assertions in his notice of motion and written submission that his life will be endangered if he is refouled to Pakistan contradicts such finding of fact.  He has however not articulated any errors of law, procedural unfairness or irrationality by the Board, which rendered such finding unsafe.   

9.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.

The applicant, unrepresented, acting in person