SHIYAD ALI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 144/2021

[2022] HKCA 556

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 144 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 600 OF 2017)

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J U D G M E N T

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Hon Kwan VP (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 G Lam JA) handed down on 10 December 2021 ([2021] HKCA 1840). The Court of Appeal dismissed the applicant’s summons for leave to appeal out of time against the decision of Deputy High Court Judge Josiah Lam on 2 August 2018 ([2018] HKCFI 1774) refusing to grant leave to apply for 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 17 December 2021 that the Notice of Motion shall be determined on paper only without an oral hearing. The applicant lodged his written submissions on 31 December 2021. Having considered his submissions and the papers, we think it appropriate to determine this application on paper.

3.  The applicant is a national of Pakistan. He entered Hong Kong illegally on 16 December 2011. He was arrested by the police on 27 June 2012 and lodged a non-refoulement claim on 1 July 2012. His claim was made on the basis that he will be harmed or killed by members of the Taliban if he returns to Pakistan.

4.  He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. It was refused by the judge on 20 September 2018[1].

5.  The applicant renewed his application to the Court of Appeal for extension of time to appeal on 5 May 2021. This application was late for more than 31 months and was dismissed by the Court of Appeal on 10 December 2021 as the applicant failed to show any prospect of success in his intended appeal.

Grounds of appeal

6.  The applicant stated his grounds of appeal in the Notice of Motion which may be summarised as follows:

(1)  The judges erred in determining that the judge had not failed to appreciate the significance of the applicant’s non-refoulement claim;

(2)  The lack of assistance provided to the applicant is an error of law or procedure, or evidence of procedural unfairness, or failure to adhere to high standards of fairness;

(3)  The authorities have not made reasonable arrangements to enable the applicant to understand the judgment. The applicant was deprived of the right to make full grounds of appeal as the judgment was not translated to him.

7.  The applicant’s contentions in his written submissions may be summarised as follows:

(1)  The judgement of the judges does not make logical sense at all;

(2)  The judges have not considered his grounds of appeal thoroughly;

(3)  He seeks reconsideration of his case based on unfairness and unreasonableness for the lack of language and legal assistance.

Analysis and disposition

8.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) 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.

9.  The applicant’s complaints that the judgment does not make logical sense and that the judges have not considered his grounds thoroughly are just bare assertions without particulars or evidence in support. On the contrary, the Court of Appeal duly mentioned the applicant’s grounds and clearly stated the reasons for rejecting them in its judgment.

10.  The rest of his grounds and submissions had been sufficiently dealt with by the Court of Appeal in its judgment. The applicant failed to demonstrate that the Court of Appeal was wrong in dismissing his application and 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).

11.  We therefore refuse leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 17 December 2021.