Mehmood Nasir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

CACV 434/2019

[2021] HKCA 520

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 434 OF 2019

(ON APPEAL FROM HCAL NO 1663 OF 2018)

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Before: Hon Chu, Au JJA and S T Poon J in Court

Date of Written Submissions:  29 July 2020

Date of Judgment: 21 May 2021

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JUDGMENT

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Hon S T Poon J (giving the Judgment of the Court):

1.On 16 July 2020, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 21 May 2020 (“the Judgment”). In the Judgment, this Court (Au JA and S T Poon J) dismissed the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung dated 11 September 2019 dismissing his application for leave to apply for judicial review.

2.Pursuant to section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“HKCFAO”), the application should be made within 28 days from the date of the judgment to be appealed from. Thus, the deadline for filing the present application expired on 18 June 2020. The applicant is almost one month out of time.

3.The facts and issues in the appeal, as well as the Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, pursuant to paragraph 3 of Practice Direction 2.1, we see no reason to deviate from the usual practice and proceed to consider this application without an oral hearing.

4.Section 22(1)(b) of the HKCFAO provides that an appeal shall lie to the Court of Final Appeal (“CFA”) at the discretion of this Court or the CFA 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 CFA for decision.

5.Further, as the applicant did not apply for leave to appeal to the CFA within time, the court has a discretion to extend time under section 24(5) of the HKCFAO only if good and sufficient grounds are shown by the applicant.  In deciding whether there are such good grounds, the court is entitled to take into account:. (1) the length of the delay, (2) the reasons for the delay, (3) the chances of the appeal succeeding if an extension of time is granted, and (4) the degree of prejudice to the respondent if the application is granted.  See: Re Villano Maricar Tabita [2020] HKCA 998, Full Wisdom Holdings Ltd v Traffic Stream Infrastructure Co Ltd CACV 266/2003, 27 July 2004; Bowlstar (HK) Ltd v Ho Kwai Po CACV 156/2006, 10 July 2007; Elijah Saatori v Raffles Medical Group CACV 109/2008, 11 March 2009; and Tsit Wing (Hong Kong) Company Limited & Others v TWG Tea Company Pte Ltd & Another (unreported) CACV 191/2013, 29 January 2015.

6.In his Notice of Motion, the applicant raised the following grounds of appeal:

“I would like to [inform] the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL Information and my previous facts which were in favour while rejecting my claim. Actual life occur different situation then what is mentioned in COL Information. The Officer and [court] prefers to ignore the [overwhelming] of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is [betray] a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”[sic]

7.In his skeleton submissions of 29 July 2020 filed pursuant to the Court’s directions, the applicant merely repeated his personal background and his claim.  He did not advance any grounds against the Judgment. 

8.For the following reasons, the applicant has failed to show good grounds for an extension of time to be granted.

9.The delay of almost 30 days is significant, especially when the statutory time limit is only 28 days.  Yet, the applicant failed to provide any explanation for such delay. 

10.Further, in our view, the applicant’s application is without merit.  The matters raised in the Notice of Motion and written submissions fail to pinpoint any specific error in the Judgment.  Plainly, there are no viable grounds of appeal against the Judgment, and the intended appeal has no prospect of success.  It would be futile to extend time.

11.In the premises, and in any event, the applicant has failed to identify any question of great general or public importance that ought to be submitted to the CFA for decision.  Nor do we see any basis to grant leave on the “otherwise” limb.  Plainly, the statutory requirements under s.22(b) of the HKCFAO are not met.    

12.Accordingly, we refuse to extend the time for the applicants to apply for leave to appeal to the CFA, and dismiss the Notice of Motion. 

The applicant acting in person