Re Akram Muhammad Sufyan

CACV 280/2020

[2021] HKCA 504

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 280 OF 2020

(ON APPEAL FROM HCAL NO. 1828 of 2018)

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Before: Hon Cheung, Chu and Au JJA in Court

Date of Judgment: 20 April 2021

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.On 14 January 2021, this Court (Cheung and Chu JJA) handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Lung given on 10 July 2020 refusing him leave to apply for judicial review.

2.On 16 March 2021, the applicant filed a notice of motion and an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  He had also put in a written submission to support his application.

3.Having considered the applicant’s notice of motion, affirmation and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that 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.  Under section 24(5), the Court of Appeal may extend the time for the filing of the notice of motion.

5.The applicant’s application is late by five weeks, which is not a minor delay.  He explained in his affirmation that the application was late because he did not have money.  He also said that he was an uneducated person and always needed help.  While we understand the applicant may face some difficulties, we do not consider he has provided satisfactory explanation for the delay in making the application.

6.We turn next to consider the merits of the application.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

7.Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, leave to appeal to the Court of Final Appeal may be granted 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 notice of motion, the applicant stated the following as his grounds of appeal:

(1) The decision maker just relied on country of origin information (“COI”) and facts that support a rejection of his claim. But real life situation is different from what is stated in the COI. 

(2) The immigration officer and the Court ignored the overwhelming evidence of violence towards minorities.  Their decisions betray a biased and formulaic approach.  It is unlikely that they had fairly assess the danger to his life.

(3) He does not have legal representation and asks that this be provided to him.

9.The applicant’s written submission referred to some legal propositions about the requirement of high standard of fairness, the duty to act fairly and the Wednesbury unreasonableness. It also set out nine grounds for judicial review covering misdirection of law, procedural impropriety or unfairness and irrationality.

10.The applicant also stated in the covering letter attaching the written submission that he applied for protection because he fears his life will be in danger in Pakistan, and he does not have faith in the Pakistani authorities.

11.We are of the view that the grounds of appeal in the notice of motion and the arguments in the written submission and covering letter do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  Importantly, they all relate to the circumstances of the applicant, and do not involve any question of great general or public importance, as required by section 22(1)(b).  Further, none of the grounds and arguments had been raised before the Judge or in the appeal before us.  It is not permissible for the applicant to put forwards new grounds in an application for leave to appeal to the Court of Final Appeal.  In any event, these are general assertions unsupported by particulars.  The applicant has also not shown how the legal propositions and grounds for judicial review stated in the written submission relate to his case.

12.We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

13.As the statutory requirements for giving leave to appeal are not met, the application for leave to appeal is bound to fail.  In the circumstances, it is futile to extend the time for making the application.  Accordingly, we refuse to extend the time for applying for leave to appeal to the Court of Final Appeal and dismiss the notice of motion.  

The applicant, unrepresented, acted in person.