AT v. DIRECTOR OF IMMIGRATION AND ANOTHER

CAMP 506/2021

[2022] HKCA 1309

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 506 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 165 OF 2016)

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J U D G M E N T

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

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Yuen JA) handed down on 8 April 2022 ([2022] HKCA 488). The Court of Appeal dismissed his application for extension of time to appeal against the decision of Deputy High Court Judge Marlene Ng (as she then was) dated 25 January 2017 refusing to grant extension of time for the applicant to apply for leave to seek judicial review concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 22 April 2022 that the Notice of Motion shall be determined on paper only without an oral hearing. The applicant lodged his written submissions on 5 May 2022. Having considered his submissions and the papers, we think it is appropriate to determine this application on paper.

3.  The applicant is a national of Pakistan. He claimed he entered Hong Kong illegally and was subsequently arrested by the police. He first lodged his torture claim form on 7 December 2013 and a supplementary claim on 31 October 2014, on the basis that he would be killed by persons who attempted to coerce him to sell his land in Pakistan.

4.  The applicant took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. As his application was late for more than 4 years, it was refused by the judge on 18 October 2021[1].

5.  The applicant renewed his application to the Court of Appeal on 9 November 2021. The application was dismissed by the Court of Appeal on 8 April 2022 as there is no prospect of success in the intended appeal[2].

Grounds of appeal

6.  In the Notice of Motion, the applicant only stated that he wants to go to the Court of Final Appeal because he disagrees with the decision made by the authorities without giving any particular grounds of appeal against the decision of the Court of Appeal. The applicant further reiterated that his life is in danger if he is returned to Pakistan.

7.  The applicant’s contentions in his written submissions may be summarised as follows:

(1)  High standards of fairness are required on the part of the decision maker in the determination of torture claim as life and limb are in jeopardy and the applicant’s fundamental human right not to be subjected to torture is involved.

(2)  Lack of language assistance is an error in procedural fairness and therefore his case should not be dismissed by the court.

Analysis and disposition

8.  Under Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), it 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.

9.  The present application is devoid of merits as it failed to demonstrate that the Court of Appeal was wrong in dismissing his application for extension of time to appeal against the judge’s decision of 25 January 2017. He has not complained about the lack of language assistance before. In any event, this complaint is without merit as an interpreter was provided to him in all oral hearings.

10.  In addition, he has not identified any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

11.  For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 22 April 2022.