RE REHIM ABDUL

CACV 604/2020

[2021] HKCA 1314

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 604 OF 2020

(ON APPEAL FROM HCAL NO. 459 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

I.Leave to appeal to Court of Final Appeal

1.  On 10 June 2021, this Court (Cheung JA and B Chu J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 27 July 2020 in which he refused to grant leave to the applicant to apply for judicial review.

2.  The facts and issues of the appeal as well as the Court’s reasons for dismissing it are set out in our judgment.  We will not repeat them here.

3.  The applicant now applies, by a notice of motion filed out of time on 6 August 2021, for extension of time for leave to appeal against our judgment to the Court of Final Appeal.  He was over three weeks late.  The applicant’s notice of motion contains no grounds of appeal.  He simply stated that he wanted to take the appeal to the Court of Final Appeal.

4.  In the applicant’s supporting affirmation, he did not state the reason why his notice of motion was made late.

5.  The applicant in his written submissions recited various factual background of his case.  He then stated that his life was ‘not totally safe in Pakistan’.

II.      Legal principles

6.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘the Ordinance’), an 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. Section 24(5) of the Ordinance further provides that the Court of Appeal may, if it considers appropriate, extend the time for making an application for leave to appeal.

7.  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, 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.

8.  In the present application, the applicant was over three weeks late.  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 paragraph 1.4).

III.     Our view

9.  No merits are shown in the applicant’s intended application. The matters stated by the applicant in his notice of motion do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the Ordinance. Nor is there any such question apparent to us from the matters he has raised in his notice of motion. 

10.  We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b) of the Ordinance.

IV.     Disposition

11.  For these reasons, we decline to grant an extension of time to the applicant to file an application for leave to appeal to the Court of Final Appeal and dismiss the notice of motion filed on 6 August 2021.

CACV 604/2020

[2021] HKCA 826

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 604 OF 2020

(ON APPEAL FROM HCAL NO. 459 OF 2018)

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J U D G M E N T

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

1)  The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan in which he refused to grant leave to the applicant to apply for judicial review.

2)  Factual background

2.1  The applicant is a national of the Pakistan.  He entered Hong Kong illegally on 25 January 2014.  He was arrested and subsequently released on recognizance.  He later filed a non-refoulement claim.

2.2  The basis of the applicant’s claim is that he would be harmed or killed by one Usman and his subordinates from a rival political party.  There was also a personal dispute between Usman and the applicant.

3)  The Director’s Decisions

3.1  The Director of Immigration (‘the Director’) decided against the applicant’s torture claim on 24 February 2016.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

3.2  The Director decided against the applicant’s right to life claim on 25 November 2016 (‘the Director’s Further Decision’).  The Director’s Further Decision covered Article 2 (right to life) of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’) on 7 March 2016.  After a hearing held on 18 January 2017, the applicant’s claim was dismissed by the Board on 12 March 2018 who had also considered the Director’s Further Decision which was handed down on 25 November 2016.

4.2  The Board held that out of the three incidents involving Usman and his men mentioned by the applicant, only two involved physical assault, where the applicant suffered only minor cut and scratches that required no medical attention.  There was no medical evidence to support the applicant’s alleged injury.  The applicant never reported the incidents to the local police.  There was indication that Usman had no intention to kill the applicant.  The risk of violence against the applicant was localized and internal relocation was possible.  Minimum level of severity was not established.

5)  Decision of the Judge

5.1  The applicant filed his Form 86 within time, seeking for leave for judicial review on 20 March 2018.  In his supporting affirmation, the applicant did not provide any grounds for leave for judicial review.

5.2  On 27 July 2020, the Judge held that the Board rejected the applicant’s case due to an adverse finding on his credibility after thorough and detailed analysis.  In the absence of error or procedural unfairness, there was no reasonable arguable basis to challenge the Board’s decision.   

6)  Grounds of appeal

6.1  Doing the best that we could read from the applicant’s notice of appeal, he stated that the Judge followed the decision of the Board and failed to show cause.

6.2  Doing the best that we could read from the applicant’s written submissions, the applicant repeated the facts of his case.  He alleged that the Director and the Board wrongly refused his claim and had they checked carefully they should not have.

6.3  In Court the applicant said that the leader of his party had fled the country and if he (i.e. the applicant) returns home, his life will be in danger.

7)  Our view

7.1  We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu[2018] HKCA 451 at [38] and [39]. 

7.2  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

7.3  We see no basis to disturb the Deputy Judge’s Decision.  Accordingly, the appeal is dismissed.