RE AHMAD ASIF

CACV 77/2018

[2022] HKCA 73

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 77 OF 2018

(ON APPEAL FROM HCAL NO. 391 OF 2017)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  On 19 July 2018 at the hearing of this appeal when the applicant was absent, this Court dismissed his appeal against the decision of Deputy High Court Judge Woodcock given on 23 March 2018 refusing him leave to apply for judicial review.  On 27 July 2018, we handed down our Reasons for Judgment[1].

2.  On 20 December 2021, the applicant filed a notice of motion and an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  Despite directions given by the Registrar of Civil Appeals, he has not lodged any written submission to support his application.

3.  Having considered the notice of motion and affirmation, 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 documents in the case.

4.  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.  Under section 24(5), the Court of Appeal may extend the time for the filing of the notice of motion.

5.  The applicant’s application is late by more than three years and four months, which is very serious delay.  The applicant has not provided any explanation for the delay.        

6.  We turn next to consider the merits of the application.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

7.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, 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 set out the following grounds in support of the application:

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

9.  The applicant’s affirmation further stated that the decisions of the Director of Immigration and the Torture Claims Appeal Board were unlawful, and failed to take into account the danger and the risks to the applicant’s life.  It urged the Court to reconsider the applicant’s claim and to give him leave to appeal so that he could, with the help of legal aid, present his case in court because this is a matter that involves the life of a human being.

10.  We are of the view that there is no proper basis to grant leave to appeal to the Court of Final Appeal.  Importantly, it has not been shown that the intended appeal involves a question of great general or public importance, as required by section 22(1)(b).  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

11.  As the statutory requirements for giving leave to appeal are not met, the application for leave to appeal is bound to fail.  In the circumstances, it is futile to extend the time for making the application.  Accordingly, we refuse to extend the time for applying for leave to appeal to the Court of Final Appeal and dismiss the notice of motion.