RE ALI HAIDER

CACV 8/2018

[2024] HKCA 765

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 8 OF 2018

(ON APPEAL FROM HCAL NO. 353 of 2017)

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J U D G M E N T

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Hon Chu VP giving the Judgment of the Court:

1.  On 24 April 2018, this Court (Lam VP, Chu and Barma JJA)  handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Woodcock given on 22 December 2017 refusing to grant him leave to apply for judicial review.

2.  On 4 July 2024, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant had attached to his affirmation a six-page document entitled “Grounds of Notice of Motion against Judicial Review”.  He did not lodge any written submission despite the directions of the Registrar for Civil Appeals given on 4 July 2024.  We shall take the six-page document as the applicant’s written submission in support of his application.

3.  The applicant requested for an oral hearing to deal with the present application.  Having considered the papers in this case, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of the papers filed in this case.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  Section 24(2)  of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that 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 extend the time for the filing of the notice of motion.

6.  The applicant’s present application is late by more than six years, which is very serious delay.  In the notice of motion, the applicant explained that due to various detention and his being illiterate and lack of knowledge about court process, he did not submit the application within time.   There was no elaboration on the detentions nor what steps he had taken to find out the procedure and time limit for appealing to the Court of Final Appeal.  We do not consider the applicant has provided satisfactory explanation or good reason for his lengthy and serious delay.

7.  As to the merits of his intended appeal, section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance provides that leave to appeal to the Court of Final Appeal may be granted if 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.

8.  The Notice of Motion did not set out any grounds to support the application.  In the six-page document, the applicant stated the following:

(1)  He would be harmed or killed by his enemies if he returned to Pakistan.

(2)  His case was determined unfairly by the Director of Immigration and the Torture Claim Appeals Board.

(3)  There was procedural unfairness. He did not have legal assistance or language assistance in applying for judicial review and appeal. The Board’s decision was not read or translated to him. He prepared the court documents without legal assistance.  This amounted to procedural unfairness. 

(4)  He had requested an oral hearing. The Courts should have offered him an opportunity to express his rights. He was not allowed to attend oral hearing in court and the court decisions were based on consideration of documents. 

9.  The matters put forward by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  First, they all relate to the applicant’s claim and do not involve any question of great general or public importance, as required by section 22(1)(b).  Second, the complaint that the court dealt with his application for leave to bring judicial review and his appeal on the papers is factually incorrect.  Both his application and his appeal were listed for oral hearing and the applicant was present on both occasions.  Third, for the reasons we gave at paragraphs 10 to 13 of our judgment, the complaints of procedural unfairness, including non-availability of legal and language assistance are unarguable. Fourth, given that his claim was rejected by the Board as not credible, the assertion that he would be harmed or killed in Pakistan has no evidential basis  

10.  The circumstances of this case also do not provide any basis to grant leave on the “otherwise” limb under section 22(1)(b). 

11.  Having regard to the absence of good cause for the serious delay, and the lack of merits of the intended appeal, there is no basis for us to extend the time for the filing of the notice of motion.  Accordingly, we dismiss the notice of motion.