RE MUHAMMAD NASIR

CAMP 3/2020

[2021] HKCA 531

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 3 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 1384 OF 2018)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.  By a judgment dated 14 January 2021 ([2021] HKCA 36), this Court (Yeung VP and Chu JA) refused to grant an extension of time to the applicant to apply for leave to appeal against the decision of DHCJ Josiah Lam (“the Judge”) given on 3 September 2019 in HCAL 1384/2018 refusing to grant him leave to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board (“the Board”) given on 19 June 2018 dismissing his petition/appeal from the decisions of the Director of Immigration (“Director”) given on 2 March 2011 and 31 July 2017 rejecting his non-refoulement claim.

2.  By a notice of motion dated 25 January 2021, the applicant now seeks leave to appeal to the Court of Final Appeal on the grounds that:

“The Judges of the High Court refused my leave to apply for judicial review but my problem in my country is remain same as before. I can’t return home. So I want to go to the Court of Final Appeal.”

3.  Pursuant to the directions made by the Registrar of Civil Appeals on 26 January 2021, the applicant should lodge his written submissions on or before 8 February 2021.  He delayed and only lodged his written submissions on 22 February 2021.  Although the delay of two weeks cannot be said to be insignificant, we are prepared to exercise our discretion to allow the late lodging of the written submissions.

4.  In the applicant’s written submissions, he stated that it is dangerous for him to return to Pakistan as his enemies were powerful and the police would not protect him as they received bribe from his enemies.  He urged the court to let him stay in Hong Kong.

5.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

6.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) provides 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.

7.  In our judgment, nothing set out in the notice of motion and the written submissions can be constituted as viable ground of appeal as they did not pinpoint any error of law or raise any discernible or arguable ground for disturbing our judgment.  As stated in [25] of our judgement, we endorsed the Board’s findings that the applicant had failed to establish his case on all applicable grounds as the alleged incidents of extortion of money and assault were local and private in nature and since the incidents happened more than 15 years ago, there would not be a persistent intent on the part of the unidentified gangsters to harm the applicant again upon his return.  Accordingly, the applicant’s intended appeal is unarguable and bound to fail.

8.  For the reasons that we gave in our judgment of 14 January 2021, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion and the written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

9.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his notice of motion.