Re Asha Dullah

CAMP 161/2019

[2021] HKCA 1025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 161 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 471/2018)

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J U D G M E N T

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

1.On 30 December 2020, this court (Chu JA and Barma JA) handed down a judgment dismissing the application for extension of time to appeal against the decision of Deputy High Court Judge Josiah Lam (“the judge”) on 24 December 2018 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 application, 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 3 March 2021, for leave to appeal to the Court of Final Appeal out of time.  The applicant stated in the Notice of Motion that:

“The [judge] refused my leave to apply for judicial review. I have no way to stay in Hong Kong for my safety. On the other hand I have no way to return my home country. If I return my enemy will kill me. For my life safety I want to bring my case to the Court of Final Appeal.”

4.In the affirmation dated 3 March 2021, the applicant deposed that:

“Affirmation for apply notice of motion after cross time limit. As I did not get my letter from the court.”

5.The applicant lodged a written submission in support of the application on 12 April 2021.  In the written submission, the applicant explained why it is unsafe for him to return and asked for leave to appeal to the Court of Final Appeal so that he can be safe.

6.Having considered the applicant’s Notice of Motion, affirmation and written submission, 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.  He has not explained how he failed to receive the letter from court or explain how he eventually came to know about our judgment.

8.We nonetheless go on to consider the merits of the intended appeal.

9.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.  

10.The only ground advanced for the application for leave to appeal is that it is unsafe for the applicant to return.  We note that the Board dismissed his claim for non-refoulement protection primarily because of the lack of credibility in his case.  The bare assertion by the applicant that it is unsafe for him to return lacked particulars and does not relate to any public law error in the Board’s Decision, or any error in our judgment or the decision by the judge.  In our view, this ground is therefore not reasonably arguable before the Court of Final Appeal.

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

12.For these reasons, the Notice of Motion dated 3 March 2021 is dismissed.

The applicant acting in person