SHAFAIT MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 429/2021

[2022] HKCA 1102

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 429 OF 2021

(ON APPEAL FROM HCAL NO 2811 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 Lisa Wong J) handed down on 21 January 2022 ([2022] HKCA 134). The Court of Appeal rejected the applicant’s appeal against the decision of Deputy High Court Judge K W Lung dated 26 August 2021 ([2021] HKCFI 2456) refusing to grant leave for the applicant to seek judicial review concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 28 February 2022 that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged his written submissions on 21 April 2022. Having considered his written submissions and the papers, 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 illegally and was arrested by the police on 15 September 2012. He lodged his torture claim on 17 September 2012. This was refused by the Director of Immigration (“the Director”) on 8 February 2013 and his appeal was dismissed by the Torture Claims Appeal Board (“the Board”) on 2 April 2013. His claim was made on the basis that he will be harmed or killed by some members of the Pakistan Muslim League (Nawaz) because of a land dispute.

4.  After the commencement of the Unified Screening Mechanism in 2014, the applicant’s claim was further assessed on BOR 2 risk[1], BOR 3 risk[2] and persecution risk[3], which was rejected by the Director and the Board on 7 March 2018 and 3 December 2018 respectively.

5.  He filed a Form 86 on 10 December 2018 to seek leave to apply for judicial review against the decision of the Board. The leave application was dismissed by DCHJ K W Lung on 26 August 2021.

6.  The applicant filed a Notice of Appeal on 6 September 2021. The appeal was dismissed by the Court of Appeal on 21 January 2022. He filed the present Notice of Motion on 28 February 2022 for leave to appeal out of time to the Court of Final Appeal.

Grounds of appeal

7.  The applicant stated the following grounds in his Notice of Motion and affirmation:

(1)  There is some error in law in the decision. The decision maker just relied on the Country of Origin information (“COI”) and previous facts to reject the claim while the real-life situation is different from what is mentioned in the COI. The decision failed to take into account the dangers and risk of his life.

(2)  The immigration officer and the court ignored the evidence of violence towards minorities, searching for unrealistic silver lining.

(3)  The decision betrayed a biased and formulaic approach which is unlikely to fairly assess the danger to his life and is clearly unreasonable.

8.  His written submissions are substantially the same as the ones he previously lodged in his appeal to the Court of Appeal.

Analysis and disposition

9.  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.

10.  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).

11.  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.

12.  The applicant was late for 3 days in filing his Notice of Motion. Apart from the absence of any explanation for the delay in his affirmation, there are no merits in the intended appeal. The applicant failed to give any particulars or evidence in support of his grounds and submissions and/or demonstrate that the Court of Appeal was wrong in rejecting his appeal. We are not satisfied there is any good ground to grant an extension of time for the applicant to file the Notice of Motion.

13.  In any event, 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).

14.  For the above reasons, we dismiss the Notice of Motion filed on 28 February 2022.