RE QASIM NADEEM

CAMP 266/2019

[2020] HKCA 861

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 266 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 715 OF 2018)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.  By a judgment dated 11 August 2020 ([2020] HKCA 593), this Court (Yeung VP and Chu JA) refused to grant a time extension for the applicant to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 5 July 2019 in HCAL 715/2018 in which the Judge refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“Board”) given on 16 March 2018 dismissing his petition/appeal from the decision of the Director of Immigration (“Director”) given on 7 November 2017 rejecting his non-refoulement claim.

2.  By a notice of motion dated 11 August 2020, the applicant now seeks leave to appeal to the Court of Final Appeal on the grounds that:

“I would like to appeal against the judge’s decision based on the fact that the inconsistencies is based on a miscommunication between the translator and the TCAB. I believe they do not really understand my case and my situation and that’s why they found inconsistencies there. And the lack of understanding led to error in judgment. Therefore, I would like to lodge an appeal against the court decision.”

3.  Pursuant to the direction made by the Registrar of Civil Appeals on 19 August 2020, the applicant lodged his written submissions on 31 August 2020.

4.  In the applicant’s written submissions, he contended that:

(i)     He only received the Call-1 Form three days before the deadline for filing the notice of appeal.  As a foreigner who cannot write in English, he needed to seek assistance and he took some time to find a non-government organization to help him.

(ii)    He should be granted an extension of time.  He understood that the court would consider four factors in determining whether to grant the time extension, namely (a) the length of 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. 

(iii)   He understood from the judgment that the judges had excused his delay but dismissed his case on the basis that he did not have a substantial chance of success. 

(iv)   It was unfair to refuse his application as it is about his life and death.  He should be allowed to be heard in court and his case should merit consideration.  He urged the court to re-consider his case on humanitarian grounds and to grant his application.

5.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

6.  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.

7.  Regarding his complaints stated in the notice of motion, hitherto, the applicant has never raised any complaint about miscommunication between the translator and the Board that led to errors in the Board’s decision.  As we have explained before, it is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the lower court hearing nor it is the general practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal, see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In any event, the Board had rejected the applicant’s case on the issue of credibility with its thorough and detailed analysis and reasons set out in [28] to [33] of its decision and we found no basis for intervention with the Board’s decision[1].

8.  Regarding the grounds of appeal raised in his written submissions, the applicant merely urged this Court to reconsider his application without pinpointing any error of law or procedural unfairness or irregularity of our findings and they are not viable grounds of appeal to the Court of Final Appeal. 

9.  For the reasons that we gave in our judgment of 11 August 2020, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion and his written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

10.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his notice of motion.

[1] See [8], [22] and [23] of our judgment