USMAN MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 426/2022

[2025] HKCA 894

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 426 OF 2022

(ON APPEAL FROM HCAL 2466 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  On 22 February 2023, this court (Barma JA and S T Poon J)  handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge K. W. Lung set out in the Form CALL-1 dated 18 October 2022, by which the Deputy Judge refused his application for leave to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board dismissing his appeal against the decision of the Director of Immigration rejecting his non-refoulement claim.

2.  The facts and issues in the applicant’s appeal, 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 out of time on 3 April 2023, for leave to appeal to the Court of Final Appeal.  In the Notice of Motion, the applicant stated inter alia, without providing any particulars, that:bhy

“… there is some error in law in my decision. Decision maker just relied on COL Information and my previous facts which were in favor while rejecting my claim. Acual (sic) life occur different situation then what is mentioned in COL Information. The Officer and cours (sic) 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 applicant’s affirmation filed on 3 April 2023, he claimed that he had filed the Notice of Motion out of time because he “did not receive the judgment within time stipulated for appeal”.

5.  In his written submissions lodged on 17 April 2023, the applicant referred to the well-established principles in, inter alia, ST v Director of Immigration (sic)[2] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 and Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.

6.  Having considered the applicant’s Notice of Motion, affirmation and written submissions, 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 failed to explain or provide any particulars on how and when he eventually came to learn of the judgment of this court.  Further, according to the records of the court, a copy of the judgment of this court dated 22 February 2023 was sent to the applicant at his last known address by letter dated the same, which was not returned undelivered.

8.  The inference to be drawn is that the applicant has had knowledge of this court’s judgment within the period which he was permitted to lodge an appeal, and we are therefore of the view that the applicant has failed to provide any reasonable explanation for the delay.  Given the relatively short delay (of 12 days), we propose to focus on the merits of the application.

9.  In any event, 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.

10.  Neither the Notice of Motion 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.

11.  There was no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in his written submissions had not been applied in the consideration of his appeal by this court or in processing of his non-refoulement claim.

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

13.  For these reasons, the Notice of Motion dated 3 April 2023 is dismissed.