ASIF FAROOQ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 169 /2020

[2022] HKCA 439

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 169 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 5 OF 2018)

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J U D G M E N T

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Hon Kwan VP (handing down 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 Chow JA) handed down on 10 September 2021 ([2021] HKCA 1292). The Court of Appeal refused to grant extension of time for the applicant to appeal against the decision of Campbell‑Moffat J dated 9 June 2020 ([2020] HKCFI 1146) 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 2 November 2021 that the Notice of Motion shall be determined on paper without an oral hearing.  The applicant lodged his written submissions on 15 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 entered Hong Kong as a visitor on 4 August 2001 and subsequently overstayed.  On 5 May 2009, he surrendered to the Immigration Department and lodged a torture claim.  He withdrew his torture claim in 2012 stating that he wished to return to Pakistan.  He lodged a non‑refoulement claim on 24 July 2015 on the basis that if he returns to Pakistan he will be harmed or killed by the people of Lashkar-e-Jhangvi as he had reported their illegal activities to the police.

4.  He took out a summons for leave to appeal out of time against the decision of the judge at the court below on 29 July 2020.  His application was dismissed by the judge on 26 August 2020^[1]. 

5.  The applicant renewed his application to the Court of Appeal on 18 September 2020.  The application was dismissed by the Court of Appeal on 10 September 2021 because there is no prospect of success in the intended appeal.

Grounds of appeal

6.  In the Notice of Motion filed on 2 November 2021, the applicant stated the following as his grounds of appeal:

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

7.  His written submissions may be summarized as follows:

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

(2)     the Board acted in a procedurally unfair manner without properly assessing his credibility.

Analysis and disposition

8.  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. 

9.  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).

10.  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.

11.  The applicant was late for 25 days in filing his Notice of Motion.  He explained in his affirmation that he did not receive the judgment within the time stipulated for appeal.  The court informed the applicant in the notice of handing down judgment dated 6 September 2021 the judgment would be handed down on 10 September 2021 and that the judgment would be uploaded to the Judiciary website within the same day of handing down.  The judgment was also sent by post to the applicant’s address on 10 September 2021 and the mail has not been returned to the court.  Under these circumstances, the applicant’s explanation for the delay is not acceptable.  Therefore, there is no good ground for the court to grant extension of time for him to seek leave to appeal in the present application.

12.  In any event, the applicant’s grounds are just bare assertions without particulars or elaboration.  He has not given particulars and/or evidence to show 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).

13.  For the above reasons, we dismiss the Notice of Motion filed on 2 November 2021.

[1]  [2020] HKCFI 2053