RE BUTT ASIF ELLAHI

CACV 491/2020

[2023] HKCA 459

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 491 OF 2020

(ON APPEAL FROM HCAL 2100 OF 2018)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  On 4 June 2021, this court (Barma JA and Lisa Wong J)  handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 28 July 2020 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board dismissing his appeal against the decision of the Director of Immigration rejecting his non-refoulement claim.

2.  The facts and issues in the applicant’s appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.  

3.  The applicant subsequently applied, by a Notice of Motion filed out of time on 19 August 2022, for leave to appeal to the Court of Final Appeal.  In the Notice of Motion, the applicant stated:

“… there is some error in law in my decision. Decision maker just relied on COL information and my previous facts which were in favor on reject my claims. Actual life occur different situation the mentioned COL information. Immigration officer and Hong Kong High Court’s prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining. The Decision is betray bias and formula approach unlikely fairly access the danger of my life and clearly calculate to reject my claims. Also I am requested to court I don’t have legal representation could you please provide me and consider my real situation and safe my life’s as a human being Bundle of thanks.”

4.  The applicant stated in his supporting affirmation that he was out of time in filing the Notice of Motion because he was remanded in prison and he “will be reached Tuen Mun (CIC)  detention centre”.

5.  In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge written submissions with the court.  He is therefore debarred from lodging and relying upon any written submissions.

6.  Having considered the applicant’s Notice of Motion and affirmation, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

7.  The applicant failed to explain how and when he eventually came to know about the judgment of this court.  He also failed to elaborate on the circumstances of and the date(s)  on which he was remanded in prison and/or an immigration detention centre.  We are therefore of the view that the applicant has failed to provide a reasonable explanation for the delay.  The delay in this case of over 13 months is substantial, and the application is liable to be dismissed on this basis alone.  We have nonetheless proceeded to consider the merits of the application.

8.  As to the merits, the matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised.

9.  The Notice of Motion failed to identify any supposed error in our judgment and it raises no ground that is reasonably arguable before the Court of Final Appeal.

10.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

11.  For these reasons, the Notice of Motion dated 19 August 2022 is dismissed.