RE MD ALI ASGHER

CAMP 310/2019

[2021] HKCA 1811

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 310 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 259/2018)

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J U D G M E N T

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

1.  On 28 April 2021, this court (Barma JA and Au JA)  handed down a judgment dismissing the applicant’s application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”)  on 19 July 2019 striking out and dismissing his application for leave for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”)  dismissing his appeal from the decisions of the Director of Immigration rejecting his their non-refoulement claim.

2.  The facts and issues in the application, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion filed on 26 July 2021, for leave to appeal to the Court of Final Appeal out of time.  The applicant stated in the Notice of Motion that:

“I would like to inform the [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 favor while rejecting my claim. Actual life occur different situation then what is mentioned in COI information. The Officer and courts 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.”

4.  In the affirmation filed on 26 July 2021, the applicant deposed that:

“…the plaintiff did not receive the judgment within the time stipulated for appeal…”

5.  The applicant lodged a written submission in support of the application on 6 August 2021.  In the written submission, the applicant explained why it is unsafe for him to return. He also cited a number of articles and provisions in the Basic Law, the Hong Kong Bill of Rights Ordinance, Cap 383 and some international treaties without explaining their relevance.  The applicant also advanced two grounds, namely:

(1)  the Board failed to meet the high standard of fairness.  The applicant cited ST v Betty Kwan & Anor [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289; and

(2)  the decision maker is under a duty to act fairly.

6.  Having considered the applicant’s Notice of Motion, affirmation and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

7.  The applicant did not give any particulars for his bare assertion that he did not receive the judgment in time.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the application. We nonetheless go on to consider the merits of the application.

8.  The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised.  

9.  Neither the Notice of Motion, affirmation nor the written submissions identify any supposed error in our judgment and they raise no ground that is reasonably arguable before the Court of Final Appeal.

10.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

11.  For these reasons, the Notice of Motion dated 26 July 2021 is dismissed.