MEHMOOD FAISAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 469/2021

[2022] HKCA 1348

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 469 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2305 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 to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Barma JA) handed down on 30 March 2022 ([2022] HKCA 441). The Court of Appeal dismissed his application for extension of time to appeal against the decision of Deputy High Court Judge C P Pang dated 19 January 2021 ([2021] HKCFI 65) refusing to grant leave to apply for 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 on 24 May 2022 that the applicant shall lodge written submissions on or before 7 June 2022. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. The applicant did not lodge any written submissions by the prescribed deadline. Having considered the papers of this case, we think it is appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of Pakistan. He entered Hong Kong on 28 February 2006 as a visitor and overstayed. He was arrested by the police on 5 August 2007 and raised a non-refoulement claim on 18 August 2008. He claimed that if refouled, he would be harmed or killed by a man named Irfan who believed that his brother Imran was killed by the applicant’s cousin in 2005.

4.  He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. His application was late by a month. It was refused by Deputy High Court Judge Bruno Chan on 24 August 2021[1].

5.  The applicant renewed his application to the Court of Appeal on 19 October 2021. The application was dismissed on 30 March 2022 because he failed to show any prospect of success in the intended appeal.

Grounds of appeal

6.  In the Notice of Motion, the applicant only stated that he wanted to go to the Court of Final Appeal without putting forward any specific grounds of appeal.

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. 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).

8.  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.

9.  The applicant was late for 20 days in filing his Notice of Motion. He explained in his affirmation that he was late because he did not get the judgment in the mail box. Before handing down the judgment, the court had sent a notice of handing down of judgment on 16 March 2022 notifying the applicant the date of handing down and that the judgment would be uploaded to the Judiciary website within the same day of handing down. The judgment was also sent to the applicant’s address by post on 30 March 2022. Under these circumstances, the applicant’s explanation for the delay is not justifiable.

10.  In any event, the applicant did not have any reasonably arguable grounds of appeal. He failed to demonstrate that the Court of Appeal was wrong in dismissing his application and did not 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).

11.  For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 17 May 2022.