RE ASHRAF NAIM

CAMP 273/2022, [2024] HKCA 1143

On an intended appeal from [2021] HKCFI 3233

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 273 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 1323 OF 2021)

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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 28 March 2023, this court (Barma JA and Au JA) handed down a judgment dismissing the applicant’s application for extension of time to appeal against the decision of DHCJ Bruno Chan dated 29 October 2021 refusing to extend time for the applicant to apply for leave for judicial review and dismissing his leave application. The applicant had sought to review the decisions of the Torture Claims Appeal Board dismissing his appeal against the decisions of the Director of Immigration rejecting his non‑refoulement claim.

2.  The facts and issues in the applicant’s application, 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 on 31 March 2023, for leave to appeal to the Court of Final Appeal.  In the Notice of Motion, the applicant contended, inter alia, that:

(i)      this court was “wrong as a matter of law for not having applied the principle of procedural unfairness (sic) to the decision of the director”, who had failed to give reasons for his decision;

(ii)     this court failed to apply “the principle of irrationality”;

(iii)    there was “some error in law in [his] decision”;

(iv)    the Judge failed to apply “the law properly and procedural unfairness”;

(v)     he would be killed or harmed if he was refouled.

4.  In the applicant’s written submissions lodged on 13 April 2023, he merely referred to the well-established principles in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.

5.  Having considered the applicant’s Notice of Motion and written submissions, 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.

6.  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.

7.  The Notice of Motion failed to provide any particulars in the supposed errors in our judgment and it raises no ground that is reasonably arguable before the Court of Final Appeal.

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

9.  Further, there was no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in his written submissions had not been applied in the consideration of his application by this court or in processing of his non-refoulement claim.

10.  For these reasons, the Notice of Motion dated 31 March 2023 is dismissed.