Re Nur Ali

CACV 61/2021

[2022] HKCA 915

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 61 OF 2021

(ON APPEAL FROM HCAL 2463 OF 2018)

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Before:  Hon Barma JA and K Yeung J in Court

Date of Judgment: 5 July 2022

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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 17 August 2021, this court (Barma JA and K Yeung J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge C P Pang (“the Judge”) given on 4 February 2021 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”), which dismissed his appeal against the decision of the Director of Immigration (“the Director”).

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 filed out of time on 8 October 2021, for leave to appeal to the Court of Final Appeal.  The applicant referred in the Notice of Motion to alleged errors of the decision-makers who processed his non-refoulement claim, but did not point to any supposed errors in the determination of his appeal by this court.

4.In the affirmation filed on 8 October 2021, the applicant deposed that he sought to file the Notice of Motion out of time as he did not receive “the judgment” in time.

5.In his written submissions lodged on 22 October 2021, the applicant submitted that in their determination of his claim, the Board, the Director and the Judge “ignored” and “did not follow” several authorities, including inter alia articles under the International Covenant on Civil and Political Rights, provisions under the Basic Law and provisions under the Hong Kong Bill of Rights Ordinance, Cap 383.  The applicant then proceeded to restate the principles enunciated in leading authorities such as Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.  

6.Having considered the applicant’s Notice of Motion, affirmation and written submissions, 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.The applicant claimed that he did not receive “the judgment” in time (by this we assume he meant the letter enclosing a copy of this court’s judgment) but he did not explain why that was the case.  He also did not explain how and when he eventually came to know about the judgment. We are therefore of the view that the applicant has failed to provide a reasonable explanation for the delay.

8.There was no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in his written submissions had not been applied in the consideration of his appeal by this court or in processing of his non-refoulement claim. 

9.In any event, the matters advanced 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.None of the matters stated in the Notice of Motion are in our view reasonably arguable before the Court of Final Appeal. 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 filed on 8 October 2021 is dismissed.

The applicant acting in person