WAHEED AHMAD v. DIRECTOR OF IMMIGRATION

CAMP 174/2020

[2021] HKCA 1752

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 174 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 43 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving 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 Chu JA) handed down on 28 April 2021 ([2021] HKCA 561). The Court of Appeal dismissed his application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 21 December 2018 ([2018] HKCFI 2803) refusing to grant leave to apply for judicial review out of time concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 28 July 2021 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged his written submissions on 2 August 2021.  Having read his written submissions and the papers, we think it appropriate to determine this application on paper.

3.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 2 April 2008 and was arrested by the police on 4 April 2008.  He raised a torture claim on 19 April 2008 on the basis that if he returns to Pakistan he will be discriminated, harmed or killed by the Shia people as he is a member of a Sunni organization and/or pursued by the police over certain charge against him.

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 by more than 16 months.   It was refused by the judge on 11 September 2020^[1].

5.  The applicant renewed his application to the Court of Appeal on 24 September 2020.  The application was dismissed by the Court of Appeal on 28 April 2021 because there is no prospect of success in the intended appeal.

Grounds of appeal

6.  The applicant stated his grounds of appeal in his written submissions which may be summarized as follows:

(1)  His life was not safe in his own country.  It will become worse if he returns to his country at this moment.

(2)  He is not satisfied with the decision of the Board.  Many things related to his case were ignored in the decision which shows that the decision was not transparent.

(3)  The situation in his country is much different from what they think.  It is hard to live and stand in front of his enemies.

(4)  Torture and deaths of innocent people are common in police custody.  The police just give support to people who give them bribes and directly tell those powerful people the name of the person who complained against them.

Analysis

7.  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.  The Court of Appeal may extend the time for making the application under section 24(5).

8.  Good grounds have to be shown by the applicant for the court to grant him an extension of time.  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 §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 applicant was late for more than two months in taking out this application.  He explained in his affirmation that his delay is due to the lack of knowledge and insufficient resources.  These are not good grounds which would justify his substantial delay.

11.  As for the merits of his intended appeal, the applicant’s grounds in the present application were not raised in the leave application before the Court of First Instance or in the previous application 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.

12.  In any event, the applicant has not provided any evidence in support of his assertions.  He also failed to demonstrate that the Court of Appeal was wrong in dismissing his application.  Besides, he has not identified 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 exercise our discretion to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 28 July 2021.