Re Mohammed Moinuddin

CACV 173/2020

[2021] HKCA 473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 173 OF 2020

(ON APPEAL FROM HCAL NO 210 OF 2018)

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Before:  Hon Barma JA and Toh J in Court

Date of Judgment:  19 April 2021

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J U D G M E N T

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Hon Toh J (giving the Judgment of the Court):

1.On 8 December 2020, this court (Barma JA and Toh J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 3 June 2020 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decisions 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 dated 9 February 2021, for leave to appeal to the Court of Final Appeal out of time.  The applicant stated in the Notice of Motion that:

“The honorable judge of the High Court refused my application for leave to appeal, because they think [the Board’s Decision] is correct, the [Board] could not find any problem, that is totally wrong. I will not return home. To save my life I want to go to the Final Appeal.”

4.In the affirmation dated 9 February 2021, the applicant deposed that:

“…I am late. As I do not know the time limit. Please accept my application.”

5.The applicant failed to comply with Practice Direction 2.1 and did not lodge the skeleton submission within the time limit.  The applicant was therefore debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

6.Having considered the applicant’s notice of motion and affirmation, 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.We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  Ignorance of the law on the part of the applicant is not a reasonable excuse for the delay.  We nonetheless go on to consider the merits of the intended appeal.

8.The matters stated 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.The applicant only claimed that the Board’s Decision was wrong but he did not identify any error in our judgment.  As for the ground based on the alleged danger he will face upon his return, the Board has found that he failed to provide truthful information and that in any event state protection was available and internal relocation was viable.  The applicant failed to substantiate any public law error in the Board’s Decision.  In our view, these grounds are not reasonably arguable before the Court of Final Appeal.

10.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 dated 9 February 2021 is dismissed.

The applicant acting in person