ISHTIAQUE AHMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CAMP 15/2021

[2022] HKCA 405

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 15 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 233 OF 2018)

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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 Au JA) handed down on 23 August 2021 ([2021] HKCA 1205). The Court of Appeal refused to grant extension of time for the applicant to appeal against the decision of Deputy High Court Judge Bruno Chan dated 30 June 2020 ([2020] HKCFI 1270) refusing to grant extension of time for the applicant to apply for leave to seek judicial review concerning his non-refoulement claim.

2.  Having considered the applicant’s submissions lodged on 1 November 2021 and the papers of this case, we think it appropriate to determine this application on paper without an oral hearing pursuant to paragraph 3 of Practice Direction 2.1 and proceed to do so.

3.  The applicant is a national of India. He last arrived in Hong Kong on 13 July 2007 as a visitor and subsequently overstayed. He was arrested by the police on 26 October 2008. He raised a torture claim on 29 October 2008 on the basis that if he returns to India he will be harmed or killed by his creditors for failing to repay the debts. His torture claim was later taken as a non-refoulement claim under the unified screening mechanism.

4.  He took out a summons for extension of time to appeal against the decision of the judge at the court below on 26 August 2020. His application was dismissed by the judge on 7 January 2021.

5.  The applicant renewed his application to the Court of Appeal on 12 January 2021. The application was dismissed by the Court of Appeal on 23 August 2021 because there is no prospect of success in the intended appeal.

Grounds of appeal

6.  The applicant did not put forward any grounds of appeal in his Notice of Motion. In his written submissions, he only reiterated the problems he faced without giving specific grounds of appeal against the judgment.

Analysis and disposition

7.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484, “the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. Section 24(5) further provides that the Court of Appeal may, if it considers appropriate, extend the time for making an application for leave to appeal.

8.  Good grounds have to be shown by the applicant for the court to grant an extension of time. The relevant factors in considering whether extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

9.  Section 22(1)(b) of the Ordinance 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.

10.  The applicant was late for nearly one month in filing his Notice of Motion on 18 October 2021. He did not provide any explanation for the delay. Under these circumstances, there is no good ground for the court to grant extension of time for him to seek leave to appeal.

11.  In any event, the applicant failed to demonstrate that the Court of Appeal was wrong in dismissing his application for extension of time to appeal. Nor has he identified 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).

12.  For the above reasons, we dismiss the Notice of Motion filed on 18 October 2021.