RE MUHAMMAD SHEHBAZ

CAMP 261/2019, [2023] HKCA 1120

On Appeal From [2020] HKCA 256

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 261 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 750 OF 2017)

____________________

____________________

_______________

J U D G M E N T

_______________

Hon Au JA (giving the judgment of the court):

1.  On 5 July 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 (Lam VP (as he then was) and Au JA) judgment of 29 April 2020 (“the Judgment”) ([2020] HKCA 256).  In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge Josiah Lam (“the Deputy Judge”) dated 28 June 2018, by which the Deputy Judge refused his application for leave to apply for judicial review ([2018] HKCFI 1412).

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 27 May 2020.  Accordingly, the applicant was late for over 25 months in taking out his application for leave to appeal to the Court of Final Appeal.

5.  As 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 alleged that this court did not apply the law properly and failed to apply the principles of procedural unfairness and irrationality to the Director’s Decision.  The applicant further alleged that the decision maker just relied on Country of Origin Information (“COI”) but actual life situation differed from those in the COI.  He then alleged that the decision makers and the court ignored the overwhelming evidence of violence “towards minorities searching for unrealistic silver lining” and asserted that his life was in danger in his home country and that he would be killed or harmed if he returned.  His allegations are all bare and vague without specific particulars or evidence in support.

7.  In his supporting affirmation, the applicant only stated that he “was unaware of the rules regarding the 14-days time limit and was unrepresented”.

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

9.  At the outset, the applicant’s delay of over 25 months was severely substantial. Ignorance of the time limit in taking out his application or that he was unrepresented are not good reasons for his substantial delay.

10.  In any event, for present purpose, the applicant’s application is plainly devoid of merits. His assertions are all vague, bare and unsupported by any specific particular or evidence.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  More importantly, he did not identify any specific error in the Judgment.  Clearly, his assertions do not constitute proper grounds of appeal.

11.  Moreover, 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].

12.  Further and in any event, even taking it at its highest, his allegations remain fact-specific and do not relate to any question of great general or public importance.

13.  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.

14.  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.