RE AHMAD IFTIKHAR

CACV 227/2019

[2022] HKCA 165

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 227 OF 2019

(ON APPEAL FROM HCAL 532 OF 2018)

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JUDGMENT

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Hon Kwan VP (handing down 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 (Lam VP (as he then was) and Bharwaney J) handed down on 9 September 2019 ([2019] HKCA 1023). The Court of Appeal rejected his appeal against the decision of Deputy High Court Judge Bruno Chan dated 17 May 2019 ([2019] HKCFI 427) refusing to grant leave for the applicant to seek judicial review concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 11 August 2021 that the applicant shall lodge written submissions on or before 25 August 2021. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. The applicant has not lodged his written submissions as directed. Having considered the papers of this case, we think it is appropriate to determine this application on paper and will proceed accordingly.

3.  The applicant is a national of Pakistan. He entered Hong Kong illegally on 11 January 2015 and was arrested by the police on the same day. On 15 January 2015, he raised a non-refoulement claim on the basis that he will be harmed or killed by his uncle and cousin because of a land dispute between them if he returns to Pakistan.

4.  His non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 22 September 2017. His appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board(“the Board”) on 2 March 2018.

5.  He filed a Form 86 on 3 April 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board. DHCJ Bruno Chan dismissed the leave application on 17 May 2019.

6.  On 27 May 2019, the applicant filed a notice of appeal against the judge’s decision. The applicant attended the hearing before the Court of Appeal on 3 September 2019. The appeal was dismissed by the Court of Appeal on 9 September 2019. The applicant filed a Notice of Motion out of time on 11 August 2021 for leave to appeal to the Court of Final Appeal.

Grounds of appeal

7.  The applicant stated the following grounds of appeal in the Notice of Motion:

(1)  The judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director in refusing his application for leave for judicial review;

(2)  There is some error in the decision. The decision maker just relied on the country of origin information (COI) and the previous facts which were favourable to rejecting his claim;

(3)  Real life situation is different from the COI. The officer and the courts prefer to ignore the overwhelming evidence of violence towards minorities searching for unrealistic silver lining;

(4)  The judge did not apply the law properly.

Analysis and disposition

8.  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 application for leave to appeal.

9.  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).

10.  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.

11.  The applicant’s application was late for nearly 20 months. The delay is very substantial. He stated in his affirmation that he is detained by the Immigration Department at present and that he did not receive any correspondence from the court regarding the dismissal of his appeal. As mentioned above, the applicant was present at the hearing of his appeal on 3 September 2019. He was informed at the hearing that the judgment would be handed down on 9 September 2019 and that the judgment would be sent to him by post if he did not come to collect it. The applicant did not collect the judgment from the court on 9 September 2019 and the judgment was sent to his address (which was confirmed by him at the hearing) by post. Even if he really did not receive the judgment by post, he should have known that the judgment was handed down and should find out the outcome either by making enquiry with the court or searching for it from the Judiciary’s website. Under these circumstances, his explanation for the substantial delay is not justifiable.

12.  In any event, his grounds of appeal were not previously raised in his appeal and are just bare assertions without particulars, elaboration or evidence in support. He has not demonstrated that the Court of Appeal was wrong in its decision. Besides, the applicant has failed to identify 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).

13.  For the above reasons, we decline to exercise our discretion to grant extension of time for the applicant to file his Notice of Motion out of time on 11 August 2021 and dismiss his application for leave to appeal to the Court of Final Appeal.