RE BUTT ANJUM SALEEM

CAMP 78/2021

[2022] HKCA 223

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 78 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 469 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  On 4 January 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Chu and Au JJA) judgment of 22 November 2021 (“the Judgment”) ([2021] HKCA 1726). In the Judgment, we dismissed the applicant’s application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 27 July 2020 refusing to grant leave to the applicant to apply for judicial review.

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 filing the Notice of Motion ended on 20 December 2021.  The applicant was therefore late for two weeks with 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.  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 stated:

“I would like to [inform] the Honourable Court that there is some error in law in my decision. Decision maker just relied on COI Information and my previous facts which were in favour while rejecting my claim. Actual life occur different situation then what is mentioned in COI Information. The Officer and [court] prefers to ignore the [overwhelming] of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is [betray] a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.” (sic)

7.  In his affirmation in support filed on 4 January 2022, he stated:

“I am the applicant herein and I make this affirmation in support of my Notice of Motion in The Court of Appeal, against the decision of previous Courts, made on 22 November 2021, Torture Claims Appeal Board’s and Director of Immigration’s decisions. The Decisions are unlawful. I don’t want to go back to my home country Pakistan from Hong Kong. I have life danger in my Home’s country. My situation is very bad in the Pakistan. I appeal to Honourable Court, grant me leave. Please reconsider my Non-refoulement claim Protection in Hong Kong. I am living in Hong Kong, only for save my life. I left my family, children and properties, only for save my life. Please help me, this is matter of a human’s life. I attached here a Judgment.” (sic)

8.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 18 January 2022.  In his submissions, he claimed that his life would be in danger if he returned to Pakistan.  He further claimed that the Director of Immigration did not attain the high standard of fairness in making his decision and did not know the real situation and condition of the Pakistani culture when making his decision.  He also claimed that there was police misconduct and that he was tortured at the behest and in full collusion of the police and the state law enforcement agencies, and that the corruption and incompetence of the administration in Pakistan was a very serious problem.  The applicant also alleged that the Board failed to make sufficient enquiry before finalising its determination.

9.  In our view, the applicant’s intended appeal has no merit at all.  None of the matters raised in his Notice of Motion has identified any specific error in the Judgment.  General assertions of his fear to return to his home country simply do not constitute viable grounds of appeal.  The matters raised in his Notice of Motion are all general and bare allegations unsupported by specific particulars or evidence.  Clearly, they do not constitute proper grounds of appeal.

10.  Further, as stated at [19] of the Judgment, the assessment of evidence, Country of Origin Information and state protection are primarily within the province of the Board and the Board’s finding on the availability of state protection in the applicant’s case was also well based and justified.  Accordingly, the applicant’s allegations have no substance.

11.  Moreover, the applicant’s application for leave to apply for judicial review concerned the Board’s decision rather than the Director’s decision in refusing his non-refoulement claim.  In any event, the decision of the Director was not a decision that was susceptible to judicial review once an appeal to the Board was pursued by a claimant: Re Moshin Ali [2018] HKCA 549 at [45].  As such, his arguments in relation to the Director’s decision are wholly misplaced.

12.  In any event, the applicant’s contentions are fact-specific and do not relate to any question of great general or public importance.

13.  Accordingly, the applicant has also 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 Notice of Motion filed on 4 January 2022 is dismissed.