RE MUNAWAR HUSSAIN

CACV 277/2021

[2022] HKCA 206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 277 OF 2021

(ON APPEAL FROM HCAL NO 1071 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 17 December 2021, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal (“the CFA”)  against this Court’s (Au JA and Lisa Wong J)  judgment of 20 October 2021 (“the Judgment”)  ([2021] HKCA 1538). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  dated 21 May 2021, by which the Deputy Judge refused his application for leave to apply for judicial review ([2021] HKCFI 1449).

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 CFA at the discretion of this Court or the CFA 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 CFA 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 present application expired on 17 November 2021.  The applicant was therefore late for one month with his application for leave to appeal to the CFA.

5.  As the applicant did not apply for leave to appeal to the CFA 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 APPLIED NON REFOULEMENT CLAIM TO HONG KONG IMMIGRATION. THE DIRECTOR OF IMMIGRATION AND ADJUDICATOR OF TORTURE CLAIMS APPEAL BOARD REJECTED MY CLAIM. THE HIGH COURT AND THE COURT OF APPEAL DISMISSED MY LEAVE. I WANT TO APPLY TO THE COURT OF FINAL APPEAL.” (sic)

7.  In his supporting affirmation filed on 17 December 2021, the applicant stated:

“AFFIRMATION FOR APPLY FOR NOTICE OF MOTION. I AM LATE SORRY FOR LATE APPLY. PLEASE ACCEPT MY APPEAL” (sic)

8.  The applicant lodged his written submissions on 31 December 2021.  In his written submissions, he stated that he came to Hong Kong for the safety of his life and claimed that his enemy in Pakistan was very powerful and influential and empowered by politics.  He contended that he narrated his problems to his immigration officer and it was a very big shock to him that his non-refoulement claim was rejected by the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”).  He claimed that screening his claim was not the Board’s main intention and their main work was to exclude his claim.  He further contended that as his application for leave to apply for judicial review was rejected by the Court of First Instance and the Court of Appeal and he wished he would get a good result in the Court of Final Appeal.  None of his submissions identified any error in the Judgment.

9.  In our view, the applicant’s application is wholly devoid of merit.  Not only did he fail to give any reason for his substantial delay of one month before bringing the present application, none of the matters raised in his Notice of Motion, supporting affirmation or written submissions has identified any specific error in the Judgment.  General and bare 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, supporting affirmation and written submissions are all general, bare and vague allegations unsupported by specific particulars or evidence. Clearly, they do not constitute proper grounds of appeal.  They are also fact-specific and do not relate to any question of great general or public importance.

10.  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.

11.  For these reasons, the intended appeal has no merit at all.  We will not extend time for a hopeless appeal to be pursued.  Accordingly, the Notice of Motion filed on 17 December 2021 is dismissed.