RE KASHIF MUHAMMAD

CACV 188/2020

[2021] HKCA 621

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 188 OF 2020

(ON APPEAL FROM HCAL NO 1400 OF 2018)

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J U D G M E N T

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Hon Toh J (giving the Judgment of the Court):

BACKGROUND

1.  This is the applicant’s application for leave to appeal out of time to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP, Toh and G Lam JJ) handed down on 12 January 2021 ([2021] HKCA 47) rejecting the appeal against the decision of Deputy High Court Judge K W Lung dismissing his application for leave to apply for judicial review concerning his non-refoulement claim[1].

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar directed on 4 March 2021 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged his written submissions on 17 March 2021.  Having considered the Notice of Motion and the written submission, it is appropriate for the Court of Appeal to determine this application on paper.

3.  The applicant is a national of Pakistan who is 32 years old[2]. His non-refoulement claim was made on the basis that he would be harmed or killed by two groups of men if he is repatriated to Pakistan as he had witnessed a murder resulting from a fight between them.

4.  His non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 22 August 2017.  His appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board (“the Board”) on 9 July 2018.

5.  He filed a Form 86 on 16 July 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  His application was refused by DHCJ K W Lung on 3 June 2020.

6.  On 15 June 2020, the applicant filed a notice of appeal against the decision of DHCJ K W Lung.  His appeal was heard by the Court of Appeal on 5 January 2021.  It was dismissed by the Court of Appeal on 12 January 2021.  The applicant filed a Notice of Motion on 3 March 2021 for leave to appeal out of time to the Court of Final Appeal.

GROUNDS OF APPEAL

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

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

8.  His further submissions in writing may be summarized as follows:

(1)  High standards of fairness are required in the determination of a torture claim;

(2)  The Board acted in a procedurally unfair manner in dealing with the applicant’s application without properly assessing his credibility.

ANALYSIS

9.  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.  The Court of Appeal may extend the time for making the application under section 24(5).

10.  Good grounds have to be shown by the applicant for the court to grant him an extension of time.  The relevant factors in considering whether an 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).

11.  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.

12.  In the present application, the applicant was late for more than 3 weeks in filing the notice of motion.  He explained in his affirmation that he did not receive the judgment within the time stipulated for appeal.

13.  The Court of Appeal judgment was sent to the applicant by post on 12 January 2021.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at [15]).  Besides, the applicant did not specify the date when he received the judgment and did not produce the envelope bearing the postal chop as evidence of the delay of postal service. Therefore, the applicant failed to show good grounds which justify granting an extension of time.

14.  Moreover, the applicant’s grounds of appeal are just bare assertions without particulars or evidence in support.  He has not shown any merit in his intended appeal.  In particular, the applicant has not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing his appeal.  He has also 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).

15.  For the above reasons, the Notice of Motion filed on 3 March 2021 for leave to appeal to the Court of Final Appeal is dismissed.

[1] [2020] HKCFI 1014

[2] DOB: 26.3.1989