RE AHMED TANVEER

CACV 370/2021

[2022] HKCA 1796

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 370 OF 2021

(ON APPEAL FROM HCAL 1157/2018)

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J U D G M E N T

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

1.  On 15 November 2021, this court (Barma JA and Lisa Wong J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 23 July 2021 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board dismissing the decision of the Director of Immigration rejecting his non-refoulement claim.

2.  The facts and issues in the 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 22 April 2022, for leave to appeal to the Court of Final Appeal.  In the Notice of Motion, the applicant stated, inter alia, that this court committed errors in law (such as “not having applied the principle of procedural fairness to the decision of the director”) and that he would be killed or harmed if he were to return to his home country.

4.  In the affirmation filed on 22 April 2022, the applicant deposed that he had never received any decision from the court.

5.  In breach of the directions by the Registrar of Civil Appeals, the applicant lodged his written submissions late.  However, given the relatively short delay (of 4 days), we proceeded to consider the submissions on this occasion.  In his written submissions lodged on 10 May 2022, the applicant merely referred to the well-established principles in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.

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 how and when he eventually came to know about the judgment of this court.  We are therefore of the view that the applicant has failed to provide a reasonable explanation for the delay.

8.  In any event, the matters advanced 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.

9.  Further, there was no attempt by the applicant to explain 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 the processing of his non-refoulement claim.

10.  None of the matters stated in the Notice of Motion are therefore in our view reasonably arguable before the Court of Final Appeal.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

11.  For these reasons, the Notice of Motion filed on 22 April 2022 is dismissed.