RE MD ATIAR RAHMAN

CAMP 382/2021

[2023] HKCA 360

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 382 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2962 OF 2018)

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J U D G M E N T

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

1.  On 12 December 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal out of time against this Court’s judgment of 19 October 2022 (“the Judgment”) ([2022] HKCA 1541). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge P Li (“the Deputy Judge”) dated 4 December 2020, by which the Deputy Judge refused his application for leave to apply for judicial review ([2020] HKCFI 3032).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”) provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal 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 Court of Final Appeal for decision.

4.  Further, pursuant to section 24(2) of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for the applicant to seek leave to appeal to the Court of Final Appeal against the Judgment fell on 16 November 2022.  Accordingly, the applicant was late for nearly a month in taking out his application for leave to appeal to the Court of Final Appeal.

5.  Although the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the Court has a discretion to extend time under section 24(5) of the HKCFAO only if good and sufficient grounds are shown by the applicant: see Re Imran Muhammad [2021] HKCA 482 at [9] and the authorities cited therein.  In deciding whether there are such good grounds, the Court is entitled to take into account (a) the length of the delay; (b) the reasons for the delay; (c) the chances of the appeal succeeding if an extension of time is granted; and (d) the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another [2021] HKCA 83 at [4] and the authorities cited therein.

6.  In his Notice of Motion, the applicant stated:

“1. There is some error in law in my decision. The decision maker just relied on COL information any my previous facts, which were favour on rejecting my claim.

2. The learned Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration refusing my application for Judicial Review.

3. Actual life occur different situation then mentioned COL information. Officer and courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining.

4. The Judge did not apply the law properly.” (sic)

7.  In his supporting affirmation filed on 12 December 2022, the applicant stated:

“I do solemnly and sincerely affirms that the contents before me are true, nothing but the truth. On around end of day of November 2022, I get to know about the Judgment dated 19^th day of October 2022, Because I am still serving sentence at the Pik Uk Prison that’s why everything it’s quite difficult for me to get help from any one as I am an uneducated person. Due to the language problem, it took me days to find help. Please accept my sincere apology and accept my out of time application for Notice of Motion for the leave to apply to the Court of Final Appeal.” (sic)

8.  Contrary to Practice Direction 2.1, the applicant did not lodge any written submissions.

9.  At the outset, the applicant’s delay of nearly one month was substantial.  The burden was on the applicant to provide an updated address to ensure that any correspondences from the Court could reach him in a timely manner.  As such, his bare allegations that he was serving sentence at Pik Uk Prison and had difficulties in getting help and language assistance are not good reasons for his substantial delay.  In any event, for present purpose, we are of the view his intended appeal has no merit at all.  The matters raised in his Notice of Motion are all general and bare allegations without any specific particulars or explanation.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  The applicant has also failed to identify any specific error in the Judgment with particulars.  Clearly, his arguments do not constitute viable grounds of appeal.

10.  In any event, it is trite that assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers.  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].

11.  Moreover, even taking his case at its highest, his allegations are fact-specific and do not relate to any question of great general or public importance.

12.  Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

13.  For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant him extension of time to pursue a hopeless appeal.  Accordingly, the Notice of Motion is dismissed.