ZAKI v. TORTURE CLAIMS APPEAL BOARD

CAMP 20/2021

[2022] HKCA 170

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 20 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1519 OF 2018)

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J U D G M E N T

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Hon Kwan VP (handing down 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 Chow JA) handed down on 10 September 2021 ([2021] HKCA 1294). The Court of Appeal refused to grant extension of time for the applicant to appeal against the decision of Deputy High Court Judge Bruno Chan dated 19 August 2020 ([2020] HKCFI 2015) 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 28 September 2021 that the Notice of Motion shall be determined on paper only without an oral hearing. The applicant lodged his written submissions on 12 October 2021. Having considered his written submissions and the papers of this case, we think it is appropriate to determine this application on paper and will do so.

3.  The applicant is a national of Pakistan. He entered Hong Kong illegally on 27 October 2009 and was arrested by the police on the same day. He lodged his torture claim on 29 October 2009 on the basis that if he returns to Pakistan he will be harmed or killed by the Muslim family of his cousin’s girlfriend over some personal dispute and/or by some other Muslims because he is a Christian. His torture claim was later treated as a non-refoulement claim under the unified screening mechanism.

4.  He took out a summons for extension of time to appeal against the decision of the judge at the court below on 14 September 2020 out of a mistaken belief that the time for appealing has expired at that time. His application was dismissed by the judge on 7 January 2021[1].

5.  The applicant renewed his application to the Court of Appeal on 14 January 2021. The application was dismissed by the Court of Appeal on 10 September 2021 because there is no prospect of success in the intended appeal.

Grounds of appeal

6.  The applicant stated the following grounds of appeal in his Notice of Motion which may be summarized as follows[2]:

(1)  The decision maker relied on hearsay.

(2)  The decision is irrational, unfair and disappointed the applicant.

(3)  The judges may not have analysed his summons and did not scrutinize his problems in his home country.

7.  In his written submissions, he reiterated the problems he has in Pakistan. His latest submissions are substantially similar to his previous submissions.

Analysis and disposition

8.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) 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 applicant’s intended grounds of appeal were dealt with by the Court of Appeal in the judgment dated 10 September 2021. In the present application, the applicant failed to demonstrate that the Court of Appeal was wrong in dismissing his application for extension of time to appeal.  His grounds are just groundless assertions without particulars and evidence in support. Besides, 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).

10.  For the above reasons, we dismiss the Notice of Motion filed on 28 September 2021 and refuse to grant leave to appeal to the Court of Final Appeal.