ILYAS REHMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CAMP 17 /2021

[2022] HKCA 437

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 17 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 177 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 Notice of Motion for leave to appeal out of time to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Au JA) handed down on 6 September 2021 ([2021] HKCA 1257). The Court of Appeal refused to grant extension of time for the applicant to appeal against the decision of Deputy High Court Judge Bruno Chan dated 3 June 2020 ([2020] HKCFI 998) refusing to grant leave to apply for judicial review concerning the applicant’s non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 19 October 2021 that the Notice of Motion shall be determined on paper without an oral hearing.  The applicant lodged his written submissions on 2 November 2021.  Having read his written submissions and the papers, we consider it appropriate to determine this application on paper.

3.  The applicant is a national of Pakistan.  He arrived in Hong Kong on 27 May 2016 as a visitor and subsequently overstayed.  He was arrested by the police on 5 August 2016 and lodged his non-refoulement claim on 7 August 2016. His claim was made on the basis that he will be harmed or killed by his brother and his brothers-in-law over some family disputes if he returns to Pakistan.

4.  He took out a summons for extension of time to appeal against the decision of the judge at the court below on 11 August 2020.  His application was dismissed by the judge on 8 December 2020^[1]. 

5.  The applicant renewed his application to the Court of Appeal on 13 January 2021.  The application was dismissed by the Court of Appeal on 6 September 2021 because there is no prospect of success in the intended appeal.

Grounds of appeal

6.  The applicant did not put forward any grounds of appeal in his Notice of Motion.  In his written submissions, he only reiterated the problems he faced in Pakistan without giving specific grounds against the judgment.

Analysis and disposition

7.  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.  Section 24(5) further provides that the Court of Appeal may, if it considers appropriate, extend the time for making application for leave to appeal. 

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

9.  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.

10.  The applicant was late for more than two weeks in filing his Notice of Motion.  No explanation was provided for the delay. Thus, there is no good ground for the court to grant extension of time for him to seek leave to appeal in the present application.

11.  In any event, the applicant has not demonstrated that the Court of Appeal was wrong in dismissing his application.  Furthermore, he has 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).

12.  We therefore dismiss the Notice of Motion filed on 19 October 2021.