SENTOT ASEP MUHAIMIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 103 /2020

[2021] HKCA 506

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 103 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1746 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 out of time to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Chu JA) handed down on 29 January 2021 ([2021] HKCA 95). The Court of Appeal dismissed his application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 20 August 2019 refusing to grant leave to apply for judicial review concerning his non-refoulement claim^[1].

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 3 March 2021 that the applicant should lodge written submissions in support of his Notice of Motion on or before 15 March 2021 and that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the direction or the expiry of the time for the compliance of the direction.  The applicant did not lodge any written submission as directed.  As the time for compliance with the said directions has expired, having considered the papers, we think it appropriate to determine this application on paper and will proceed to do so.

3.  The applicant is a national of Indonesia.  He entered Hong Kong as a visitor on 13 August 2015 and subsequently overstayed.  He raised a non-refoulement claim on 4 July 2016 on the basis that he would be killed by his creditor if he is to be returned to Indonesia as he is unable to repay his debt.

4.  He took out a summons in the court below to seek an extension of time to appeal against the decision of DHCJ K W Lung.  His application was late for nine days.  It was refused by the judge on 26 June 2020. 

5.  The applicant renewed his application to the Court of Appeal for extension of time to appeal on 17 July 2020.  The application was dismissed by the Court of Appeal on 29 January 2021 as the applicant failed to show a reasonable prospect of success in his intended appeal.

Grounds of appeal

6.  In the Notice of Motion filed on 1 March 2021, the applicant stated the following as his grounds of appeal:

“I would like to infomr [sic] the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL [sic] information and my previous facts which were in favor while rejecting my claim. Acual [sic] life occur different situation then what is mentioned in COL [sic] Information. The Officer and cours [sic] prefers to ignore the overwheming [sic] of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary [sic] a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

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.  Section 24(5) provides that the Court of Appeal may, if it considers appropriate, extend the time for making an application for leave to appeal.

8.  Good grounds have to be shown by the applicant for the court to grant him an extension of time.  The relevant factors in considering whether an 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).

9.  Section 22(1)(b) of the Ordinance stipulates 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.

10.  In the present application, the applicant was late for one day in filing the notice of motion.  He explained in his affirmation that he got the judgment on around 25 February 2021 and it was difficult for him to get help because of the pandemic and the language problem as he is an uneducated person.

11.  Although the delay is insubstantial and may be justifiable, the Court of Appeal has to look at the merits of the proposed appeal in considering the present application.

12.  The applicant’s grounds of appeal are just bare assertions without particulars and evidence in support.  In particular, he has not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing his application.  

13.  Moreover, the applicant 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.  So even if the applicant had made his application for leave to appeal to the Court of Final Appeal within time, we would not have exercised our discretion to grant leave to appeal.

15.  For the above reasons, we dismiss the Notice of Motion filed on 1 March 2021 for leave to appeal to the Court of Final Appeal.