G C Khuman Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 98/2021

[2022] HKCA 520

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 98 OF 2021

(ON APPEAL FROM HCAL NO 589 OF 2019)

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Before:  Hon Kwan VP and Chow JA in Court

Date of Written Submission: 14 December 2021

Date of Judgment:  22 April 2022

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J U D G M E N T

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Hon Kwan VP (handing down the Judgment of the Court):

1.This is the applicant’s Notice of Motion for leave to appeal out of time to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Chow JA) handed down on 15 October 2021 ([2021] HKCA 1499). The Court of Appeal rejected his appeal against the decision of Deputy High Court Judge C P Pang dated 9 March 2021 ([2021] HKCFI 508) refusing to grant leave to seek judicial review concerning his non-refoulement claim.

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 1 December 2021 that the Notice of Motion shall be determined on paper without an oral hearing.  The applicant lodged his written submissions on 14 December 2021.  Having read his written submissions and the papers, we consider it appropriate to determine this application on paper.

3.The applicant is a national of Nepal.  On 14 December 2014, he lodged a non-refoulement claim on the basis that he will be harmed or killed by the customers of his restaurant who refused to settle the bill after having dinner at his restaurant.   

4.He filed a Form 86 on 1 March 2019 to seek leave to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”). DHCJ Pang dismissed the leave application on 9 March 2021.

5.The applicant filed a Notice of Appeal on 12 March 2021.  The appeal was dismissed by the Court of Appeal on 15 October 2021.  He filed a Notice of Motion on 1 December 2021 for leave to appeal out of time to the Court of Final Appeal.

Grounds of appeal

6.The applicant did not state any specific grounds of appeal in the Notice of Motion.

7.The grounds of appeal stated in his written submissions may be summarised as follows:

(1)  Many things related to his case were ignored by the Board which shows that the decision is not transparent.

(2)  The situation of his country is much different from what the Board thought.  It is hard to live there owing to his enemies.

(3)  He will be in danger in his country.  His life will become worse if he returns.  It is not possible for him to go back at this moment so he hopes he can stay in Hong Kong until the problems are solved.

(4)  He does not have the strength to fight with those who have political influence.  Someone who acts as a witness against them may disappear or be killed.

(5)  It is very difficult to get justice in that corrupt environment.

Analysis and disposition

8.Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 (“the Ordinance”), 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.  Section 24(5) further provides that the Court of Appeal may, if it considers appropriate, extend the time for making application for leave to appeal. 

9.Good grounds have to be shown by the applicant for the court to grant an extension of time.  The relevant factors in considering whether extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

10.Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.

11.The applicant was late for 19 days in filing the Notice of Motion.  He explained that he was late due to the lack of knowledge and insufficient sources.  Ignorance of the law is not an acceptable reason for the delay.  As for the alleged insufficient sources, he did not provide any elaboration in this aspect.  He has not adduced any further evidence for this application.  Under these circumstances, there does not appear to be any good ground for the court to grant extension of time.

12.In any event, his grounds of appeal have not been raised before in his appeal to the Court of Appeal and are just bare assertions without particulars or evidence in support.  He has not demonstrated that the Court of Appeal was wrong in dismissing his appeal.  Besides, he has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b).  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b). 

13.For the above reasons, we dismiss the Notice of Motion filed on 1 December 2021.

The Applicant (Appellant), acting in person