MAHMOOD WAJID v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 86/2020

[2021] HKCA 1063

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 86 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1778 OF 2018)

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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 Cheung JA) handed down on 28 January 2021 ([2021] HKCA 71). The Court of Appeal dismissed his application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 20 June 2019 ([2019] HKCFI 1565) refusing to grant leave to apply for 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 1 June 2021 that the applicant should lodge written submissions in support of his Notice of Motion on or before 11 June 2021 and that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the direction or the expiry of the time for the compliance of the direction.  The applicant did not lodge any written submission as directed.  As the time for compliance with the said directions has expired, and, having considered the papers, we consider it appropriate to determine this application on paper.

3.  The applicant is a national of Pakistan.  He first arrived in Hong Kong illegally on 5 March 2016 and raised a non-refoulement claim on 7 March 2016 on the basis that he would be harmed by his enemies and their people because of a private dispute and that he feared being arrested by the police in Pakistan.

4.  He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge.  His application was late by about three months, excluding the month of August for the court’s summer vacation.  It was refused by the judge on 26 June 2020. 

5.  The applicant renewed his application to the Court of Appeal on 7 July 2020.  The application was dismissed by the Court of Appeal on 28 January 2021 because there is no prospect of success in the intended appeal.

Grounds of appeal

6.  The applicant stated his grounds of appeal in the Notice of Motion filed on 28 May 2021 which may be summarized as follows:

(1)  The applicant did not know that failure to lodge a skeleton submission would cost him an oral hearing which he specifically requested for. He relied too much on friends and NGO to help him out because he did not have any knowledge about the judicial review system of Hong Kong and did not get any translation from friends and NGO;

(2)  Judges were procedurally unfair in the decision.  The applicant requested for legal aid but it was refused;

(3)  The judges mentioned that they were unable to find error in the decisions of the Director and the Board notwithstanding that the applicant did not show any inconsistencies in the hearing and gave proof to the Director and the Board but they still gave decisions against him;

(4)  The judges were unfair as they only saw information from the media but in reality it is impossible to relocate or ask for help from the government.  The security system in his country is worse than before.

 Analysis and disposition

7.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), 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.  The Court of Appeal may extend the time for making the application under section 24(5).

8.  Good grounds have to be shown by the applicant for the court to grant him an extension of time.  The relevant factors in considering whether an extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

9.  Section 22(1)(b) of the Ordinance 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.

10.  The applicant was late for three months in filing his Notice of Motion. He explained in his affirmation that he did not receive any letter but only learned about the rejection of his case from an officer.  Both the notice of handing down the judgment and the judgment of the Court of Appeal were sent to the applicant’s address by post in January 2021 but were returned to the court by the post office.  It is noted that the applicant’s address stated in his present application is different from the address he stated in his notice of appeal but he has not filed a notice of change of address informing the court of his change of address.  Therefore, his explanation cannot justify his substantial delay in filing the Notice of Motion.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15). 

11.  In any event, the applicant’s grounds are either contrary to the facts or not supported by any evidence.  He contended that he did not know the failure to lodge skeleton submissions would cost him an oral hearing which he specifically requested for.  In fact, he had attended the hearing for his application for leave to bring judicial review before the judge at the Court of First Instance on 6 March 2019.  The applicant also alleged that he showed no inconsistencies at the hearings before the Director and the Board but he was in fact absent from the hearing before the Board.  The Director held that there is nothing to show that the applicant had suffered any serious harm at the hands of his enemies or that the private dispute between the applicant and his enemies had involved any government officials.  The Board found that the documents submitted by the applicant are largely inconsistent with his claim.  He has failed to adduce any evidence to refute the findings of the Director and the Board.

12.  Furthermore, the applicant failed to provide any arguable basis to show that there is any procedural unfairness in the decisions of the Court of First Instance or the Court of Appeal.  In particular, he has not provided any credible evidence to support his claim or submissions.

13.  He has failed to identify 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).

14.  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 28 May 2021.