RE ALLAH RAKHA

CAMP 160/2020

[2023] HKCA 206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 160 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 821 OF 2018)

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J U D G M E N T

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

1.  This court handed down judgment on 14 March 2022 ([2022] HKCA 369)  dismissing the applicant’s application to extend time to appeal against an order of DHCJ Josiah Lam (“the Judge”)  given on 22 August 2019 in which he refused the applicant’s application for leave to apply for judicial review in respect of his non-refoulement claim.

2.  The facts and issues in the application before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

3.  On 19 May 2022, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal. However, it was out of time, as section 24(2)  of the Hong Kong Court of Final Appeal Ordinance (“HKCFAO”)  (Cap. 484)  stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from.  The last day for filing the Notice of Motion expired on 11 April 2022.  This was the last day of the court’s General Adjournment Period by reason of the pandemic, so he should have filed the Notice of Motion the next day, on 12 April 2022.

4.  However, under sections 24(5)  and 24(6)  of the HKCFAO, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period.  In the exercise of our discretion whether or not to extend the appeal period, we should consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party.

5.  In the present case, the applicant was late by more than a month, which is substantial.  He did not give any explanation for the delay in his supporting affirmation.

6.  Moreover, the applicant has not shown any merits in this intended application for leave to appeal to the Court of Final Appeal.  He stated only the following in the Notice of Motion:

“The High Court and the Court of Appeal dismissed my leave to apply for judicial review but I wish the Court of Final Appeal will consider my leave to apply for judicial review”.

7.  In compliance with the directions of the Registrar of Civil Appeals given on 19 May 2022, the applicant lodged his written submissions on 2 June 2022.  This Notice of Motion is determined on paper without an oral hearing, which we consider appropriate.

8.  In his written submissions, he claimed that he came to Hong Kong to save his life.  However, the Director of Immigration, the Torture Claims Appeal Board (“the Board”)  and the court rejected his non-refoulement claim.  He complained that the Judge failed to give any reason in rejecting his application and merely said that he could not find any error in the Board’s decision.  He considered the Board made the following errors in its decision:

(i)  The Board did not make his decision based on law and became his opponent.

(ii)  The Board did not give him time to submit his document.

(iii)  The Board did not allow sufficient time and opportunity for him to explain his case.

9.  The applicant did not advance any discernible intended grounds of appeal against our judgment nor did he pinpoint any error in our judgment.

10.  In any event, the complaints raised in his written submissions are without basis.  It was noted that the applicant had indicated in his non-refoulement claim form dated 5 May 2016 that he intended to submit some documents from Pakistan which should be available within 2 months[1]. However, the documents were not obtained at the time of the Board’s hearing which was held on 7 March 2018.  The issue of documents was discussed at the Board’s hearing and it was rightly pointed out by the Board that even though it was appreciated that the applicant might have some difficulties obtaining documents from Pakistan, the onus was on him to provide the evidence to support his claim and he had about 2 years to do so[2]. In the circumstances, his complaint that he did not have sufficient time to obtain documents simply could not stand.  Further, it was clear from the Board’s decision that the applicant had every opportunity to explain his case and his evidence had been duly set out at [42] to [56] of the Board’s decision.  Lastly, his allegation that the Board had become his opponent was without basis and must be rejected.

11.  As set out at [10] of our judgment, the Judge had duly considered the applicant’s case and the Board’s decision.  The Judge’s reasons for refusing the application were explained at [35] – [48] of the Judge’s decision.

12.  The Judge found there was no error in the Board’s decision that warranted the court’s intervention, and we dismissed the appeal from the Judge for reasons given in our judgment.

13.  Section 22(1)(b)  of the HKCFAO provides that leave to appeal to the Court of Final Appeal may be granted 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.

14.  Having regard to the judgment of this court and for the reasons stated above, the applicant’s intended appeal has no merit at all.  No question of great general or public importance has been identified as required by section 22(1)(b)  of the HKCFAO.

15.  Nor do we see any basis for granting leave under the “or otherwise” limb under section 22(1)(b).

16.  By reason of the above, the Notice of Motion filed on 19 May 2022 is dismissed.