RE SHAFIQ UR RAHMAN

CACV 629/2020

[2021] HKCA 1315

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 629 OF 2020

(ON APPEAL FROM HCAL NO. 879 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 20 November 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 26 July 2021, for extension of time for leave to appeal against our judgment to the Court of Final Appeal.  He was 18 days late.  The applicant stated in his notice of motion that, as far as we can understand from his handwriting, he did not get justice.

4.  In the applicant’s supporting affirmation, he made a bare allegation that he did not ‘receive the judgment’ without any details or explanation of how that was so.

5.  The applicant in his written submissions recited various factual background of his case.  He then stated that he came to Hong Kong to save his life.

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 18 days 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 26 July 2021.

CACV 629/2020

[2021] HKCA 827

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 629 OF 2020

(ON APPEAL FROM HCAL NO. 879 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

1.1  This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan of 20 November 2020 in which he refused to grant leave to him to apply for judicial review.

1.2  This appeal was scheduled to be heard on 4 June 2021.  Despite the directions contained in the letter from the High Court to the applicant dated 1 April 2021, the applicant failed to lodge the skeleton argument by the stipulated time.  Accordingly the hearing was vacated and we will deal with this appeal on paper.

2)  Factual background

2.1  The applicant is a national of Pakistan.  In 2008, the applicant came to Hong Kong illegally.  He made a non-refoulement claim and subsequently withdrew the claim.  He was then repatriated to Pakistan in 2013.  In April 2016, the applicant came again to Hong Kong illegally and remained here since.  On 19 July 2016, he applied for non‑refoulement protection.

2.2  The basis of the applicant’s claim is that he would be harmed or killed by Akram Javed Kutri and Insaf Khan due to conflicts and money disputes over a piece of land if he was to return to Pakistan.

2.3   The background facts have been summarized in the decision of the Judge at [2]-[4].

3)  The Director’s Decision

3.  The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 4 January 2017.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), Bill of Rights Article 2 (right to life) risk (‘BOR 2’) as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’) on 18 January 2017.  After a hearing held on 16 January 2018, the Board dismissed the applicant’s appeal on 10 May 2018 (‘the Board’s Decision’).

4.2  The Board found that the applicant was not a credible witness.  The applicant’s evidence during the hearing was significantly inconsistent with the written representations.  The Board questioned the truthfulness of the applicant’s story.

5)  Decision of the Judge

5.1  The applicant filed his Form 86 but no grounds of review were mentioned.  In his supporting affirmation, he merely repeated his claim that he would be harmed or killed by his adversaries without any ground.

5.2  The Judge held that the Board’s finding was based on the applicant’s credibility assessment through a detailed analysis as contained in the Board’s decision.  There was no reasonably arguable basis to challenge the Board’s decision.

6)  Grounds of appeal

6.  The applicant in the notice of appeal merely stated that he believed that there was no good cause in the Judge’s decision, without explanation or elaboration.

7)  Our view

7.1  We are of the view that the above are all bare allegations without particulars or specifics.  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.