ALMAS KHAWAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 103/2023, [2024] HKCA 1054

On appeal from [2023] HKCFI 785

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 103 OF 2023

(ON APPEAL FROM HCAL NO 1396 OF 2022)

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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 an application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 8 February 2024 ([2024] HKCA 147). The Court of Appeal dismissed the applicant’s appeal against the decision of Deputy High Court Judge To dated 29 March 2023 refusing to extend time for the applicant to seek leave to bring judicial review against the decision of the Torture Claims Appeal Board concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the notice of motion shall be determined on paper without an oral hearing.

3.  In the notice of motion, the applicant stated the following grounds of his intended appeal:

(1)  The judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director of Immigration (“the Director”) whereby the Director was required to give reasons justifying the decision;

(2)  The judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director;

(3)  There is some error in the decision. The decision maker just relied on the country of origin information and the applicant’s previous facts which were in favour of rejecting the claims;

(4)  Actual life is different from the country of origin information. The immigration officers and the courts prefer to ignore the overwhelming evidence of the violence towards minorities searching for unrealistic silver lining;

(5)  The judge did not apply the law properly and there is procedural unfairness;

(6)  The applicant’s life is in danger in his home country. He would be killed or harmed if he returns to his country.

4.  The applicant lodged his written submissions on 7 May 2024. His submissions may be summarised as follows:

(1)  High standards of fairness are required in the determination of a torture claim on the part of the decision maker; and

(2)  The adjudicator acted in a procedurally unfair manner without properly assessing his credibility.

5.  Having considered the papers of this case, we think it is appropriate to determine this application on paper and proceed to do so.

Analysis and Disposition

6.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), 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. Good grounds have to be shown by the applicant for the court to grant an extension of time pursuant to section 24(5) of the Ordinance (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

7.  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.

8.  The applicant was late for more than one month in filing the notice of motion. In his supporting affirmation, he explained that he failed to file his appeal within time due to his lack of knowledge regarding the intricacies of court procedures. We do not consider his explanation justifiable as a litigant has the duty to follow the rules of the court. There is no good ground for this court to grant extension of time for him to file the notice of motion.

9.  In any event, the applicant’s grounds and submissions in the present application are devoid of merits. In our judgment dated 8 February 2024, we have found that the applicant’s grounds and submissions are just bare assertions without evidence in support. He failed to identify any particular mistakes in our judgment. He did not give any particulars, elaboration or evidence in support of his assertions in this application. He 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).

10.  Therefore, we dismiss the notice of motion filed on 12 April 2024.