BILAL KHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 389/2021

[2022] HKCA 971

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 389 OF 2021

(ON APPEAL FROM HCAL NO 2770 OF 2018)

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J U D G M E N T

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Hon Kwan Ag CJHC (giving the Judgment of the Court):

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Yuen JA) handed down on 24 December 2021 ([2021] HKCA 1924). The Court of Appeal rejected the applicant’s appeal against the decision of Deputy High Court Judge K W Lung dated 5 August 2021 ([2021] HKCFI 2182) refusing to grant leave for the applicant to seek judicial review concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 11 February 2022 that the applicant should lodge written submissions in support of his Notice of Motion on or before 25 February 2022 and that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the direction or the expiry of the time for the compliance of the direction. The applicant did not lodge any written submission as directed. As the time for compliance with the said directions has expired, having considered the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a Pakistani national. He sought to enter Hong Kong on 11 November 2015 but was refused permission to land. He filed a non-refoulement claim on the same date. His claim was made on the basis that, upon refoulement, he would be harmed or killed by Raziq because he was unable to repay the debt owed to Raziq and he also refused to work for Raziq for free.

4.  He filed a Form 86 on 5 December 2018 to seek leave to apply for judicial review against the decision of the Torture Claims Appeal Board. The leave application was dismissed by DCHJ Lung on 5 August 2021.

5.  The applicant filed a Notice of Appeal on 13 August 2021. The appeal was dismissed by the Court of Appeal on 24 December 2021. The applicant filed a Notice of Motion on 11 February 2022 for leave to appeal out of time to the Court of Final Appeal.

Grounds of appeal

6.  In the Notice of Motion filed on 11 February 2022, the applicant stated that his life is still in danger in his country so he cannot return home and wants to take his case to the Court of Final Appeal.

Analysis and disposition

7.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484, “the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. Section 24(5) further provides that the Court of Appeal may, if it considers appropriate, extend the time for making application for leave to appeal.

8.  Good grounds have to be shown by the applicant for the court to grant an extension of time. The relevant factors in considering whether extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

9.  Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, 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 Court of Final Appeal for decision.

10.  The applicant was late for three weeks in filing his Notice of Motion. The delay is not insubstantial. He explained in his affirmation that he received the letter late so he could not submit the application on time. He did not state when he actually received the letter and why he received the letter late. He also did not provide any particulars or evidence in support of his assertion. Under these circumstances, the applicant’s delay is not justified.

11.  In any event, the applicant did not put forward any viable grounds to appeal against the decision of the Court of Appeal. In particular, he failed to demonstrate that the Court of Appeal was wrong in rejecting his appeal. Besides, he has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

12.  For the above reasons, we refuse to extend time to apply for leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 11 February 2022.