RE MUHAMMAD TANVEER

CACV 97/2022, [2024] HKCA 275

On Appeal From [2022] HKCFI 527

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 97 OF 2022

(ON APPEAL FROM HCAL NO. 2913 OF 2018)

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DECISION

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Hon Cheung JA (giving the Decision of the Court) :

1)  Leave to appeal

1.   On 17 October 2022, this Court handed down judgment ([2022] HKCA 1529) (‘the CA Judgment’) dismissing the applicant’s appeal from the decision of Deputy High Court Judge P Li given on 23 February 2022, whereby he refused to grant leave to the applicant to apply for judicial review against the decisions of the Director of Immigration (‘the Director’) dated 17 October 2017 and of the Torture Claims Appeal Board (‘the Board’) dated 14 November 2018.  The facts and issues, as well as this Court’s reasons for dismissing the appeal from the Judge’s decision, are set out in the CA Judgment.

2.  On 24 March 2023, the applicant filed a notice of motion for leave to appeal the CA Judgment to the Court of Final Appeal.

3.  Despite the directions given by the Registrar of Civil Appeals, the applicant has not lodged any written submissions, whether by the prescribed deadline or otherwise.   Having considered the papers, we consider it appropriate to determine this notice of motion on paper without an oral hearing.

2)    Our view

4.  The notice of motion filed on 24 March 2023 was out of  time, as  section 24(2)  of  the  Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’) (Cap. 484) stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from.  Thus, the deadline for filing the notice of motion expired on 14 November 2022.

5.  Under sections 24(5) and 24(6) of the HKCFAO, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period.  Before the Court may grant an extension of time, good grounds have to be shown by the applicant, bearing in mind that he has already had his day in Court twice when making the present application.  The relevant factors in considering whether an extension of time should be given are the length of the delay, the reasons for the delay, the merits of the proposed appeal, and the prejudice to the other party.

6.  In the present case, the applicant was late by over four months.  This is substantial.  In his supporting affirmation, the applicant explained that he was unaware of the procedural rules as a lay person.  However, ignorance of the rules cannot be accepted as a valid excuse for non-compliance.

7.  In any event, as for the merits of the proposed appeal, the applicant has advanced the following in the notice of motion :

‘1. The learned Judges were wrong as a matter of Law for not having applied the principle of procedural unfairness to the decision of the director whereby the director was required to give reasons justifying the decision.

2. The learned Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration refusing my application for Judicial Review.

3. There is some error in law in my decision.  The decision maker just relied on COL information any my previous facts, which were favor on rejecting my claim.

4. Actual life occur different situation then mentioned COL information.  Officer and courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining.

5. The Judge did not apply the law properly & Procedural unfairness.

6. I further want to explain that my life is in danger in my country.  I would be killed or harmed if I return back to my country.’

8.  Having regard to the CA Judgment, the applicant’s proposed appeal has no merit at all.  In particular, the subject matter we are concerned with is the Board’s decision, and the complaints against the Director have been addressed in paragraph 12 of the CA Judgment.  The Board had found the applicant’s version of events to be incredible and untruthful, and rejected the applicant’s allegation that he was in a land dispute with his uncle, which was the basis for his claim that he would be harmed or killed. The matters raised in the applicant’s proposed appeal are, in substance, against the factual findings made by the Board and the reasons given.  As mentioned in the CA Judgment, the Court should not usurp the role of the Board in the assessment of evidence, Country of Origin Information materials, and the risk of harm, and the Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness, or irrationality in the decision.  As the Judge did not find any error in law and procedure, the Judge held that the Board’s decision was rational.  Accordingly, the matters set out in the notice of motion do not raise any discernible ground to reverse the CA Judgment.

9.  Importantly, section 22(1)(b) of the HKCFAO 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.

10.  No such question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO. Nor do we see any basis for granting leave under the ‘or otherwise’ limb under section 22(1)(b).

11.  As the statutory requirements for giving leave to appeal are not met and the proposed appeal has no merit, 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 filed out of time on 24 March 2023.