Iqbal Mazhar v Torture Claims Appeal Board / Non‑refoulement Claims Petition Office

CAMP 165/2021

[2022] HKCA 1071

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 165 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1344 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Chow JA) handed down on 11 February 2022 ([2022] HKCA 169). The Court of Appeal refused to grant extension of time for the applicant to appeal against the decision of Deputy High Court Judge K W Lung dated 30 March 2021 ([2021] HKCFI 830) dismissing the application for leave to apply for 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 16 February 2022 that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged his written submissions on 1 March 2022. Having considered his written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of Pakistan. He entered Hong Kong illegally in mid-2014 and surrendered to the Immigration Department on 21 November 2014. He lodged a non-refoulement claim on 18 March 2015 on the basis that he will be harmed or killed by the husband of his elder sister if he returns to Pakistan because of a family dispute.

4.  He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. It was refused by the judge on 5 May 2021[1].

5.  The applicant renewed his application to the Court of Appeal for extension of time to appeal on 17 May 2021. The application was dismissed by the Court of Appeal on 11 February 2022 as the applicant failed to show any prospect of success in his intended appeal.

Grounds of appeal

6.  In the written submissions, the applicant reiterated the procedural history of his case and the problem he faced in his home country. He also contended that Hong Kong repatriates all asylum seekers by force which is a violation of refugee convention.

Analysis and disposition

7.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 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.

8.  Contrary to the applicant’s contention, the Hong Kong courts have allowed the applications of asylum seekers who had substantiated their cases on valid grounds. His submissions in the present application are just bare assertions without evidence in support. In particular, he has not identified any error in the Court of Appeal’s decision. Furthermore, 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).

9.  We therefore refuse to exercise our discretion to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 16 February 2022.

The Applicant, acting in person