RE SHAH SYED SAGHIR HUSSAIN

CACV121/2018

[2021] HKCA 612

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEALNO 121 OF 2018

(ON APPEAL FROM HCAL 819/2017)

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J U D G M E N T

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

1.  On 17 July 2018, this court (Lam VP, Barma JA and Poon JA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 20 April 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decisions of the Director of Immigration rejecting his non-refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion dated 18 February 2021, for leave to appeal to the Court of Final Appeal out of time.  The applicant stated in the Notice of Motion that:

“I want to challenge the decision given on 17 July 2018.”

4.  In the affirmation dated 18 February 2021, the applicant deposed that:

“I was late because the letter sent to my old address.”

5.  The applicant lodged a written submission in support of the application on 4 March 2021.  In the written submission, the applicant submitted that:

“before I have closed my case I don’t want go back my countries my life is danger. Please I want re open my case I can living in HK if I go back my country my country is danger therein [untintelligible]”

6.  Having considered the applicant’s Notice of Motion, affirmation and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

7.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  It is the applicant’s duty to ensure that he has the correct address in the court’s record.  He did not explain why he failed to update the court’s record with his new address.  We nonetheless go on to consider the merits of the intended appeal.

8.  The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised.  

9.  The only ground advanced by the applicant is his bare assertion that he will be harmed upon his return.  We note that the Board has already dismissed the applicant’s claim on the ground that it is implausible and incapable of belief.  The Board was not satisfied that there was a real risk of harm to the applicant upon his return.  The applicant has failed to substantiate any public law error in the Board’s Decision, and we are therefore of the view that this ground is not reasonably arguable before the Court of Final Appeal.

10.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

11.  For these reasons, the Notice of Motion dated 18 February 2021 is dismissed.