BASHIR AHMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS

CACV 249/2020

[2021] HKCA 356

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 249 OF 2020

(ON APPEAL FROM HCAL NO 1798 OF 2018)

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J U D G M E N T

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Hon G Lam J (giving Judgment of the Court):

1.  The applicant filed a Notice of Motion on 17 February 2021 seeking leave to appeal to the Court of Final Appeal from the judgment of this Court (Kwan VP, E Toh and G Lam JJ) handed down on 8 January 2021 ([2021] HKCA 40). In that judgment, this Court dismissed the applicant’s appeal against the decision of Deputy High Court Judge K W Lung on 30 June 2020 ([2020] HKCFI 1375) dismissing the application for leave to apply for judicial review concerning his non-refoulement claim.

2.  Contrary to the direction of the Registrar of Civil Appeals on 19 February 2021, the applicant has failed to lodge any written submissions for the application.  Pursuant to Practice Direction 2.1, we consider it appropriate to determine this application on paper without an oral hearing. 

3.  In the Notice of Motion, the applicant stated as follows:

“ Because the High Court judges refused my leave to appeal for judicial review but I have no way to return my country. To save my life I should stay in Hong Kong or out of Pakistan. But Immigration want to send me back Pakistan. I request to the Court of Final Appeal for my leave.” (sic)

4.  The applicant also filed an affirmation on 17 February 2021 seeking an extension of time for his application, stating simply:

“Apply Notice of Motion but my time is over. Please extend my time.”

5.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), an 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.  Time may be extended by the Court of Appeal under section 24(5).

6.  Section 22(1)(b) 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.

7.  In the present application, the applicant was 12 days late in filing the Notice of Motion.  Good grounds have to be shown by the applicant for the Court to grant him an extension of time.  The relevant factors for considering whether an extension 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).  The applicant did not provide any explanation for the delay in his affirmation.

8.  In any event, the applicant has not shown any valid ground for his application for leave to appeal to the Court of Final Appeal.  He has not put forward any argument to demonstrate that this Court erred in rejecting his appeal.  Nor has he identified any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination.  We do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b). 

9.  For these reasons, the application is dismissed.