RE ZZAMAN MD ASADU

CAMP 455/2021

[2022] HKCA 924

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 455 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 638 OF 2017)

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J U D G M E N T

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

1.  On 13 May 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal out of time against this Court’s (Cheung and Au JJA)  judgment of 31 March 2022 (“the Judgment”)  ([2022] HKCA 478). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge Woodcock (“the Deputy Judge”)  dated 3 July 2018, by which the Deputy Judge refused his application for leave to apply for judicial review ([2018] HKCFI 1407).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal 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.

4.  Further, pursuant to section 24(2)  of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for filing the present application expired on 28 April 2022.  The applicant was therefore late for over two weeks with his application for leave to appeal to the Court of Final Appeal.

5.  As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the Court has a discretion to extend time under section 24(5)  of the HKCFAO only if good and sufficient grounds are shown by the applicant: see Re Imran Muhammad [2021] HKCA 482 at [9] and the authorities cited therein.  In deciding whether there are such good grounds, the Court is entitled to take into account (a)  the length of the delay; (b)  the reasons for the delay; (c)  the chances of the appeal succeeding if an extension of time is granted; and (d)  the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another [2021] HKCA 83 at [4] and the authorities cited therein.

6.  In his Notice of Motion, the applicant stated:

“With due respect and humble submissions I beg to you that I have still severe problem in my home country. I am not agree with the decision of the Court, because the decision maker did not consider my claim properly. If I return back to my home country I will be killed by my enemy. This decision made me unhappy and irrational in my life. Decision maker made me liable to remove to the risk state, in my home country where my life in danger, but the Torture Claims Appeal Board and the Director of Immigration did not scrutinize my claim properly in my home country. The decision maker relied on source of news which not officially recognized and it is just simply hearsay.” (sic)

7.  In his supporting affirmation filed on 13 May 2022, the applicant stated:

“That the application to apply for Notice of Motion is out of time, so I need to make an affirmation for this application. I am not agree with the decision of the Court, because the decision made me unhappy and made me liable to remove in the risk state, my home country.” (sic)

8.  Contrary to Practice Direction 2.1, the applicant did not lodge any written submissions.

9.  At the outset, it is noted that the applicant failed to provide any reason, let alone any good reason, for his substantial delay of over two weeks in making his application for leave to the Court of Final Appeal.  More importantly, his intended appeal has no merit at all.  The matters raised in his Notice of Motion are all general and bare allegations without any specific particulars or explanation.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  The applicant has also failed to identify any specific error in the Judgment with particulars.  Clearly, his arguments do not constitute proper grounds of appeal.

10.  In any event, as stated at [21] of the Judgment, it is trite that assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  As further stated at [22] of the Judgment, we agree with the Deputy Judge that there was no procedural unfairness or error of law or ground warranting any interference with the Board’s Decision by the Court by way of judicial review.

11.  Even taking his case at its highest, his allegations are fact-specific and do not relate to any question of great general or public importance.

12.  Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

13.  For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant him extension of time to pursue a hopeless appeal.  Accordingly, the Notice of Motion filed on 13 May 2022 is dismissed.