RE NAUSHAD MOHAMMED

CACV 410/2022, [2023] HKCA 1065

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 410 OF 2022

(ON AN APPEAL FROM HCAL NO. 1399 OF 2019)

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J U D G M E N T

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

1.  On 17 May 2023, this court handed down a judgment ([2023] HKCA 657) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 30 September 2022 refusing to extend the time for him to apply for judicial review and dismissing his application for leave to apply for judicial review.

2.  On 3 August 2023, the applicant filed a Notice of Motion and an affirmation to apply for leave to appeal this court’s judgment to the Court of Final Appeal. He has also put in any written submission on 21 August 2023 after the deadline which he explained was because he was sick[1].

3.  Having considered the Notice of Motion and the 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.  The background to this case and the applicant’s claim have been set out in our judgment. We will not repeat them.

5.  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. Section 24(5) of the Ordinance further provides that the Court of Appeal may extend the time for the filing of the notice of motion. In considering whether to extend the time, we will have regard to (i) the length of the delay; (ii) the reasons for the delay; (iii) the merits of the intended application; and (iv) the prejudice to the other parties if time was extended.

6.  The applicant’s notice of motion is nearly eight weeks late, which is a substantial delay. The applicant explained in his affirmation that as an asylum seeker and a layman he did not know what to do. He had not however elaborated on what steps he had taken to obtain assistance or advice. We do not consider he has satisfactorily explained the delay.

7.  As to the merits of the intended appeal, section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance 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.

8.  The Notice of Motion set out two intended grounds of appeal, namely (1) Error of law; and (2) The decision was reached unfairly.

9.  The applicant has attached a four-page grounds of application to the Notice of Motion, which elaborated on the two grounds as follows:

(1)  Ground (1): The applicant relies on prosecution risk, BOR 2 risk and BOR 3 risk to establish that the Director of Immigration, the Torture Claims Appeal Board and the court had erred in rejecting or dismissing his claim. The central question to be considered is whether there is a real risk of the applicant’s feared harm materializing. Given that (a) the applicant had in the past been attacked, harmed and had experienced violence from his enemies committed with the consent and acquiescence of a public official, (b) the attack and persecution stemmed from his political opinion, (c) every human being has an inherent right to life, (d) the dismissal of his claim would render him vulnerable to be refouled and at risk of being subjected to torture or cruel, inhuman or degrading treatment and punishment, the Director, the Board and the court erred by not affording him protection under the persecution, BOR 2 risk and BOR 3 risk grounds.

(2)  Ground (2): One of the reasons relied on by the Director and the Board is that state protection and internal relocation options are available to the applicant. However, the country-of-origin information relied on by them shows that human right abuses exist in India and some of the abuses were perpetrated by the police, judicial officials, politicians or their agents, and that they are corrupt. Given that the applicant’s enemies are well connected and socialised with top political figures, the findings of the Director and the Board that the applicant will not face harm if refouled to India and that state protection is available to him is unfair and prejudicial to the applicant’s interest.

10.  The written submission quoted extensively from cases dealing with the high standards of fairness, and argued that as the decision has the effect of finally disposing of the applicant’s claim high standards of fairness should apply.

11.  We are of the view that the grounds and arguments put forward by the applicant do not constitute viable grounds of appeal for the following reasons:

(1)  What was stated in the Notice of Motion and the grounds of application relate solely to the circumstances and facts of the applicant’s claim. No question of great general and public importance has been identified, as required by section 22(1)(b) of the Ordinance, had been identified.

(2)  The arguments in the grounds of application had not been raised in the application before the Judge nor in the appeal before this Court. It is well established principle that the court will not permit new points to be raised for the first time at an application for leave to appeal to the Court of Final Appeal.

(3)  The assertions made by the applicant in the grounds of application are untenable in light of the findings made by the Board on the factual basis of his claim: see [38] to [75] of the Board’s decision as summarised in [12] and [13] of our judgment.

(4)  The applicant’s grounds and arguments do not engage the reasons for dismissing her appeal: see [24] to [26] of our judgment.

(5)  The applicant has not shown how the legal propositions in his written submission relate to his case or his intended application or appeal.

12.  We also do not see any basis for the “or otherwise” limb under section 22(1)(b).

13.  As the statutory requirements for giving leave to appeal are not met, the Notice of Motion is dismissed.