AKHTAR MUHAMMAD JAVED v. DIRECTOR OF IMMIGRATION

CAMP 263/2021

[2022] HKCA 1195

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 263 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 265 OF 2017)

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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 to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Chow JA)  handed down on 3 March 2022 ([2022] HKCA 325). The Court of Appeal dismissed his application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 8 February 2018 ([2018] HKCFI 246)  refusing to grant leave to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”)  concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 3 May 2022 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged his written submissions on 10 May 2022.  Having considered his written submissions and the papers, we think it is appropriate to determine this application on paper.

3.  The applicant is a national of Pakistan. He was refused entry into Hong Kong on 15 July 2011 and lodged a torture claim on the same day, which subsequently became a non-refoulement claim. His claim was made on the basis that if he returned to Pakistan, he would be harmed or killed by his creditor for failing to repay his loan, and by his family members and neighbours in his home village for having converted from Islam to Christianity.

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 two years and ten months exclusive of the court’s summer vacation during the period of August.  It was refused by the judge on 18 May 2021[1].

5.  The applicant renewed his application to the Court of Appeal on 20 July 2021.  The application was dismissed on 3 March 2022 because there is no prospect of success in the intended appeal.

Grounds of appeal

6.  The applicant stated his grounds of appeal in his written submissions which may be summarised as follows:

(1)  His life was not safe in his own country and it will become worse if he returns to his country at this moment.

(2)  He is not satisfied with the decision of the Board.  Many things related to his case were ignored in the decision which shows that the decision was not transparent.

(3)  The situation in his country is much different from what they think.  It is hard to live and stand in front of his enemies.

(4)  It is very difficult to get justice in that corrupt environment.

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 (See: 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 court registry was temporarily closed for public health reasons during the general adjournment period between 7 March 2022 and 11 April 2022.  The registry has resumed operation since 12 April 2022.  Pursuant to Section 71(1A)(a)  of the Interpretation and General Clauses Ordinance (Cap 1), if the act is allowed to be done within a period of time, and the last day of the period is a closure day for the office, the period includes the next following day, not being a closure day for the office.  In other words, the deadline for filing the Notice of Motion should fall on 12 April 2022 when the court registry reopened.  The applicant was late for 21 days in filing his Notice of Motion.  He explained in his affirmation that his delay is due to the lack of knowledge and insufficient resources. These are not good grounds which would justify his delay.

10.  In any event, the applicant’s grounds in the present application are substantially similar to the ones raised in his previous application before the Court of Appeal.  The Court of Appeal has sufficiently dealt with his grounds and given reasons for rejecting them in the decision dated 3 March 2022.  The applicant failed to demonstrate that the Court of Appeal was wrong in dismissing his application.  Besides, he has not identified 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 3 May 2022.