GAUCHAN SUBASH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 471/2020

[2023] HKCA 432

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 471 OF 2020

(ON APPEAL FROM HCAL NO 2878 of 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  On 29 July 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal out of time against this Court’s (Lam VP (as he then was), Yau and S T Poon JJ)  judgment of 29 March 2021 (“the Judgment”)  ([2021] HKCA 412). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”)  dated 6 August 2020, by which the Judge refused his application for leave to apply for judicial review ([2020] HKCFI 1870).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal if 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.

4.  Further, pursuant to section 24(2)  of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for filing the present application expired on 7 April 2022.  The applicant was late for over 1 year and 3 months with his application for leave to appeal to the Court of Final Appeal.

5.  As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the Court has a discretion to extend time under section 24(5)  of the HKCFAO only if good and sufficient grounds are shown by the applicant: see Re Imran Muhammad [2021] HKCA 482 at [9] and the authorities cited therein.  In deciding whether there are such good grounds, the Court is entitled to take into account (a)  the length of the delay; (b)  the reasons for the delay; (c)  the chances of the appeal succeeding if an extension of time is granted; and (d)  the degree of prejudice to the other party if the application is granted: Begum Jahanara v Ian Candy, Esq & Another [2021] HKCA 83 at [4] and the authorities cited therein.

6.  In his Notice of Motion, the applicant stated:

“I would like to infomr the Honourable Court that there is some error of law in my decision. Decision maker just relied on COL Information and my previous facts which were in favor while rejecting my claim. Acual life occur different situation then what is mentioned in COL Information. The Officer and cours prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.” (sic)

7.  In his supporting affirmation filed on 29 July 2022, the applicant stated:

“The plaintiff seek leave to file Notice of Motion out of time as the plaintiff did not receive the judgement within the time stipulated for appeal. The plaintiff now craves for leave that the Court be moved out of time.” (sic)

8.  Pursuant to Practice Direction 2.1, the applicant lodged written submissions on 10 August 2022.  In his written submissions, he cited ST v Betty Kwan [2014] 4 HKLRD 277[1]and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contended that high standards of fairness were required in the determination of a torture claim.  He submitted that the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  acted in a procedurally unfair manner without properly assessing his credibility.  He referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  He also cited section 37ZT of the Immigration Ordinance, Cap 115 in relation to the late filing of notice of appeal to the Board but failed to demonstrate how it was relevant to his case.  It is noted that his submissions were all general propositions and the applicant failed to show specifically how they were relevant to his case.

9.  At the outset, we consider the applicant’s delay of over 1 year and 3 months severely substantial. Although he alleged that he received the Judgment late, he did not provide any evidence or specific particulars in support of his contention.  From the Court record, it is noted that the Judgment and the Court’s sealed order were sent to the applicant on 29 March 2021 to his last known address without being returned undelivered.  Accordingly, there is no good reason for his excessive and inordinate delay.

10.  More importantly, his intended appeal has no merit at all.  The matters raised in his Notice of Motion are all general and bare allegations without any specific particulars or explanation.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  The applicant has also failed to identify any specific error in the Judgment with particulars.  Clearly, his arguments do not constitute proper grounds of appeal.

11.  Further, the matters raised in his Notice of Motion and written submissions mainly repeated those submissions he had previously made before this Court: see [8] to [9] of the Judgment.  It is well established that the Court of Appeal will not allow an application of this nature to be deployed as an occasion for re-running the arguments which had already been canvassed at the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014)  at [2] and [3].  His arguments had already been fully considered and rejected by this Court at [15] to [19] of the Judgment and the applicant has failed to identify with specific particulars any error in the Judgment.  As such, none of those arguments as set out in the Notice of Motion can be construed as viable grounds of appeal to the Court of Final Appeal.

12.  Even taking his case at its highest, his allegations are fact-specific and do not relate to any question of great general or public importance.

13.  Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

14.  For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant him extension of time to pursue a hopeless appeal.  Accordingly, the Notice of Motion filed on 29 July 2022 is dismissed.