Abu Siddique v. Torture Claims Appeal Board/ Non Refoulement Claims Petition Office

CACV 560/2018

[2019] HKCA 1137

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 560 OF 2018

(ON APPEAL FROM HCAL 276 OF 2018)

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BETWEEN

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Before:  Hon Yuen, Barma JJA and Lisa Wong J in Court

Date of Written Submissions:  29 August 2019

Date of Judgment:  15 October 2019

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J U D G M E N T

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

1.This court (Hon Yuen JA and Lisa Wong J) handed down judgment on 2 April 2019 ([2019] HKCA 380) (“the Judgment”) dismissing the applicant’s appeal against an order of Campbell-Moffat J given on 20 November 2018 refusing his application for leave to apply for judicial review concerning his non-refoulement claim. The facts and issues in the appeal before the Court of Appeal, as well as the court’s reasons for dismissing it, are set out in our Judgment and will not be repeated here.

2.On 13 August 2019 the applicant filed a Notice of Motion for leave to appeal the Judgment to the Court of Final Appeal. However, it was out of time, as s.24(2) of Hong Kong Court of Final Appeal Ordinance (“HKCFAO”) Cap. 484 stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from.  Therefore, in the present case, the deadline for filing the Notice of Motion had expired on 30 April 2019. 

3.However, under s.24(6) of the HKCFAO, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period.  In the exercise of our discretion whether or not to extend the appeal period, we should consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party. 

4.In the present case, the delay is more than 3 months which is a substantial delay, given that the appeal period is 28 days.

5.As for the reasons for the delay, in his affirmation filed on the same date, the applicant said that as he was a lay person, he was not aware of procedural requirements.  In our view, this is not an adequate reason.  Anyone who wishes to appeal against a judgment would ascertain whether there is any, and (if so) what is the, time limit for lodging the appeal by checking the relevant legislation online, or making inquiries with the unrepresented litigants resource centre at the High Court Building. 

6.It is noted that on 17 July 2019 the Appeals Registry received a letter dated 15 July 2019 from the applicant stating the following (sic):

“Dear Sir/Madam,

With reference of the CACV 560/2018 dated 2 April 2019.  The case was [dismissed] by the Honourable Court.  I just discharged from the prison.  Now I am holding by CIC.  I want to Re: Civil Appeal against my [dismissal] case.  So please send me a Re: Civil Appeal form from your office as early as possible.”

7.Even if one takes this letter into account, it was not sent until some two and a half months after the appeal period had already expired.  In any event, the applicant has not relied on this letter, nor has he disclosed when he was imprisoned, nor explained why he could not have lodged the appeal before he was sent to prison.

8.As for the merits of the intended appeal, the applicant stated the following grounds in the Notice of Motion (sic):

“(1) The learned judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration on the [2nd] day of April 2019, refusing my application for judicial review.

(2) There is some error in law in my decision. The decision maker just relied on COL information and my previous facts which were favour on rejecting my claim. Actual life occur different situation than mentioned COL information Officer and courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining.

(3) Procedural unfairness.

(4) The judge did not apply the law properly.”

9.In the applicant’s written submissions, he stressed that high standards of fairness and reasonableness are required in the determination of his right to non-refoulement protection because the decision has a significant effect on his non-refoulement claim.  The applicant submitted that the adjudicator acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility.  He also referred to various case authorities and argued that an unreasonable decision should be set aside. 

10.However, it must be pointed out that in his Notice of Appeal to this court, he had only written that he was “unconvinced with the verdict. Want civil tribunal”.  We have in paragraph 13 of the Judgment explained why none of the circumstances permitting this court to interfere with the judge’s decision is present in this case.  The applicant is not entitled to raise additional grounds in the Court of Final Appeal which have not been raised before this court.

11.Further, s.22(1)(b) of the HKCFAO provides that leave to appeal to the Court of Final Appeal shall be granted at the discretion of the Court of Appeal or the Court of Final Appeal if the question involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

12.No question of great general or public importance has been identified in the grounds in the Notice of Motion.

13.Nor do we see any basis for the “or otherwise” limb under section 22(1)(b).

14.In the circumstances, we do not see any valid grounds to exercise our discretion to extend time to appeal, and accordingly, the Notice of Motion filed on 13 August 2019 is dismissed.

The applicant, unrepresented, acting in person