ALAM MD AFTAB v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 312/2022

[2025] HKCA 931

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 312 OF 2022

(ON APPEAL FROM HCAL NO 2275 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  On 27 March 2023, the applicant filed a Notice of Motion to apply for leave to appeal out of time to the Court of Final Appeal against this Court’s judgment of 6 February 2023 (“the Judgment”) ([2023] HKCA 114). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung dated 4 August 2022, refusing his application for leave to apply for judicial review ([2023] HKCFI 2393).

1.  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.

2.  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.

3.  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 6 March 2023. Accordingly, the applicant was late for 3 weeks in taking out his application for leave to appeal to the Court of Final Appeal.

4.  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.

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

“Respectfully, I upon reading the Order by the Honourable Justice that my appeal for Leave to apply for Judicial review be refused that the Appeal be dismissed I would like to appeal on Your Honour’s Court again that I don’t want to return back to my Country, because my life is still in Danger in my Country. I will face hardship I return back to my Country.

I can be used as an example of such cases of seeking a stay in Hong Kong that there was a person who was deported forcefully from Hong Kong to his home country and upon his arrival to his home town he was killed by his enemies. I believes that if the Hong Kong Government allows him to stay in Hong Kong would be not less than saving a life.

I respectfully ask the Court to please grant to leave to apply for Judicial Review and allow me to stay in Hong Kong safely.” (sic)

6.  In his supporting affirmation, the applicant stated:

“Respectfully, I write this Affirmation to know the Court that I don’t want to return back to my Country, because my life is still in Danger in my Country. As a Layman it is late to appeal on Your Honour’s Court.” (sic)

7.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 3 April 2023. In those submissions, he repeated the procedural history of his non-refoulement claim. He also cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contended that high standards of fairness were required in the determination of a torture claim. He submitted that the Board had acted in a procedurally unfair manner without properly assessing his credibility. He also referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably. It is noted that his submissions were all general propositions and the applicant failed to show specifically how they were relevant to his case.

8.  At the outset, it is noted that a delay of almost 3 months is substantial and ignorance of the deadline for filing his Notice of Motion is not a good reason for his substantial delay.

9.  More importantly, his intended application is wholly without substance. The allegations made in his Notice of Motion and written submissions are all bare and vague allegations unsupported by any evidence. Furthermore, none of the arguments raised in his written submissions were argued before the Deputy Judge or before this Court in his earlier appeal. It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it; nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal: see Re Orense Marian Masangkay [2022] HKCA 33 at [7] and Re Dandiwal Sandeep Singh [2021] HKCA 870 at [7]. In any event, his arguments were all general and bare assertions unsupported by particulars. He also failed to show how the legal propositions as stated in his written submissions relate to his case. More importantly, he did not identify any specific error in the Judgment with sufficient particulars. As such, nothing set out in his Notice of Motion or written submissions can be considered as viable grounds of appeal to the Court of Final Appeal. Accordingly, the applicant’s intended appeal must fail.

10.  Further, 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.

11.  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.

12.  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.