HUSSAIN ZAKIR v. TORTURE CLAIMS APPEAL BOARD

CAMP 230 /2021

[2022] HKCA 1154

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 230 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 890 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 Barma JA) handed down on 3 March 2022 ([2022] HKCA 314). The Court of Appeal dismissed the applicant’s summons for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 15 September 2020 ([2020] HKCFI 2279) 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 6 May 2022 that the notice of motion shall be determined on paper without an oral hearing.  The applicant lodged his written submissions on 20 May 2022.  Having considered his written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of Pakistan.  He entered Hong Kong illegally in early March 2014 and was arrested by police on 27 March 2014.  He lodged a non-refoulement claim on 11 June 2014 on the basis that he will be harmed or killed by his wife’s family who are against their marriage if he returns to 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 for more than 5 months.  It was refused by judge on 15 June 2021^[1]. 

5.  On 25 June 2021, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal.  The application was dismissed by the Court of Appeal on 3 March 2022 as the applicant failed to show any prospect of success in his intended appeal.  

Grounds of appeal

6.  The applicant stated his grounds of appeal in the Notice of Motion filed on 6 May 2022 which may be summarised as follows:

(1)  He did not know the failure to lodge skeleton submission would cost him an oral hearing which he specifically requested for.

(2)  Judges were procedurally unfair in the decision.  The applicant does not have any knowledge about the judicial review system in Hong Kong but asked his friend to submit written submissions for him.  He requested for legal aid to provide him with a legal advisor but they refused.

(3)  The Director of Immigration and the Torture Claims Appeal Board (“the Board”) gave decisions on the basis of some other applicant.  His case is genuine and there were no inconsistencies at the hearings.  He can provide more proofs if they asked him to.  The Board mentioned that the applicant can relocate anywhere but it is not possible in Pakistan.  The applicant is married here and cannot leave his wife here alone.

(4)  The Court of First Instance did not judge fairly.

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

(1)  High standards of fairness are required in the determination of a torture claim on the part of the decision maker.

(2)  The applicant has proofs of the First Information Report (“FIR”) that he cannot relocate in Pakistan but the Board made its decision based on some other applicant because the respondent made a wrong FIR.

(3)  He is married with a local woman in Hong Kong and his visa is pending.  He cannot leave his wife here.  Once he got a visa, he can settle down.

Analysis and disposition

8.  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. Good grounds have to be shown by the applicant for the court to grant an extension of time pursuant to section 24(5) of the Ordinance (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 High Court registry was temporarily closed for public health reasons during the general adjournment period between 7 March 2022 and 11 April 2022.  The registry has resumed operation since 12 April 2022. Pursuant to Section 71(1A)(a) of the Interpretation and General Clauses Ordinance (Cap. 1), if the act is allowed to be done within a period of time, and the last day of the period is a closure day for the office, the period includes the next following day, not being a closure day for the office.  In other words, the deadline for filing the Notice of Motion should fall on 12 April 2022 when the registry reopened.  The applicant was late for 24 days in filing his Notice of Motion.  He explained in his affirmation that he was late because the court was closed due to pandemic.  In view of the fact that he did not act reasonably promptly after the reopening of the court registry and did not give any explanation for his further delay of more than 3 weeks, the applicant’s explanation cannot constitute good ground for the court to grant extension of time. 

11.  In any event, the applicant’s Notice of Motion is without merits.  The applicant’s ground concerning his complaint that the Board made the decision based on some other applicant was not raised in the previous applications before the Court of First Instance or before the Court of Appeal.  It is not open to the applicant to put forward these grounds for the first time at this late stage of the proceedings, well outside the time limit for bringing judicial review proceedings.  Such ground is also totally without basis and the applicant did not have any evidence to refute the Board’s finding against his credibility.   

12.  The applicant’s grounds and submissions in the present application are just bare assertions which are not supported by any evidence. He failed to show that the Court of Appeal was wrong in dismissing his application and 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).

13.  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 6 May 2022.