RE HALDER USUB

CACV 534/2021

[2023] HKCA 407

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 534 OF 2021

(ON APPEAL FROM HCAL 2062 OF 2018)

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J U D G M E N T

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

1.  On 12 April 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Au JA and L Wong J)  judgment of 28 February 2022 (“the Judgment”)  ([2022] HKCA 332). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan dated 19 November 2021, refusing his application for leave to apply for judicial review ([2021] HKCFI 3449).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal 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.

4.  Further, pursuant to section 24(2)  of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the original deadline for the applicant to seek leave to appeal to the Court of Final Appeal against the Judgment fell on 28 March 2022.  That said, owing to the closure of the High Court Registry during the General Adjournment Period (arising from the COVID-19 Pandemic)  from 7 March 2022 up to 11 April 2022, the period was automatically extended to 12 April 2022.  As the applicant filed the Notice of Motion 12 April 2022, his application for leave to appeal to the Court of Final Appeal was within time.

5.  In his Notice of Motion, the applicant stated:

“Dear Sir/Madam,

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

6.  In his supporting affirmation filed on 12 April 2022, the applicant stated:

“The plaintiff seek leave to file Notice of Motion out of time as the plaintiff did not receive the judgement within the time stipulated for appeal. The plaintiff now craves for leave that the court move out of time.” (sic)

7.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 26 April 2022.  In those submissions, he cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contended that high standards of fairness were required in the determination of a torture claim.  He submitted that the Board acted in a procedurally unfair manner without properly assessing his credibility.  He referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  He also referred to section 37ZT of the Immigration Ordinance, Cap 115, which relates to the late filing of notice of appeal to the Board but failed to point out its relevance to his case.  It is also noted that his submissions are all general propositions and the applicant has failed to show specifically how they are relevant to his case.

8.  Although the present application is filed within time, in our view, his application is wholly without substance.  The allegations made in his Notice of Motion are all bare and vague allegations unsupported by any evidence.  He did not identify any specific error in the Judgment with sufficient particulars.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  The applicant’s intended appeal plainly has no merit.

9.  Further, even taking his case at its highest, his allegations are fact-specific and do not relate to any question of great general or public importance.

10.  Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

11.  For these reasons, we dismiss the Notice of Motion.