SHAH SYED TALAT ABBAS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 174/2020

[2021] HKCA 507

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 174 OF 2020

(ON APPEAL FROM HCAL NO 1572 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is the applicant’s application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP, Cheung JA and Au JA) handed down on 8 January 2021 ([2021] HKCA 13) rejecting the appeal against the decision of Deputy High Court Judge Bruno Chan 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 of Civil Appeals had directed on 15 March 2021 that the applicant should lodge written submissions in support of his Notice of Motion on or before 26 March 2021 and that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the direction or the expiry of the time for the compliance of the direction.  The applicant did not lodge any written submission as directed.  As the time for compliance with the said directions has expired, having considered the papers, we think it appropriate to determine this application on paper and will proceed to do so.

3.  The applicant is a national of Pakistan and is 55 years old.  His non-refoulement claim was made on the basis that he would be harmed or killed by two of his customers who had close affiliation with the Muttahida Qaumi Movement, which is influential in Pakistan.

4.  His non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 20 October 2017.  His appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board (“the Board”) on 5 July 2018.

5.  He filed a Form 86 on 8 August 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 9 June 2020.

6.  On 12 June 2020, the applicant filed a notice of appeal against the decision of DHCJ K W Lung.  His appeal was scheduled to be heard by the Court of Appeal on 5 January 2021 but was subsequently vacated as he failed to lodge skeleton argument by the deadline under the direction of the Registrar of Civil Appeals dated 28 October 2020.  The Court of Appeal dealt with the appeal on paper and dismissed it on 8 January 2021.  The applicant filed a Notice of Motion on 12 March 2021 for leave to appeal to the Court of Final Appeal.

Grounds of appeal

7.  In the Notice of Motion filed on 12 March 2021, the applicant stated the following as his grounds of appeal:

8.  The Court of Appeal refused his appeal as he could not submit his skeleton argument.  He does not know anything and no body helped him to write the argument.

9.  He cannot return home at this moment so he wants to go to the Court of Final Appeal.

Analysis and disposition

10.  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).

11.  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).

12.  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.

13.  In the present application, the applicant was late for five weeks in filing the Notice of Motion.  In his affirmation, he merely mentioned that he was late and asked the court to accept his motion.  He did not provide any explanation for the delay.

14.  Moreover, the applicant has not shown any merits in his intended appeal. In particular, the dismissal of his appeal was not based on his failure to submit skeleton argument as alleged by the applicant.  The Court of Appeal made it clear that his appeal was dismissed as there is no realistic prospect of success in his intended application for judicial review.  In the present application, 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 all the above reasons, we refuse to extend time to the applicant to apply for leave to appeal to the Court of Final Appeal.  In any event, even if his application for leave to appeal were made within time, we would have exercised our discretion to refuse leave to appeal.

16.  We therefore dismiss the Notice of Motion filed on 12 March 2021.