Khadim Umair v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 186/2021

[2022] HKCA 1032

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 186 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1257 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 Barma JA) handed down on 31 December 2021 ([2021] HKCA 1988). The Court of Appeal dismissed the applicant’s summons for extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 1 March 2021 ([2021] HKCFI 477) refusing to grant 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 3 March 2022 that the applicant shall lodge written submissions on or before 17 March 2022. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. As the court registry has been temporarily closed in the period of general adjournment of the court due to public health reasons, the Registrar of Civil Appeals extended the time for lodging written submissions to 14 days after the resumption of court business. The court business has resumed since 12 April 2022. The applicant did not lodge any written submissions by the prescribed deadline. Having considered the papers of this case, 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 and was arrested by the police on 9 March 2016. He lodged a non-refoulement claim on 13 March 2016 on the basis that he will be harmed or killed by the Ansari family because his father had grudges with them.

4.He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. His application was late for 2 days. It was refused by the judge on 5 May 2021[1].

5.On 24 May 2021, the applicant filed a summons with the Court of Appeal which was treated as a renewed application for extension of time. The application was dismissed by the Court of Appeal on 31 December 2021 as the applicant failed to show any prospect of success in his intended appeal.

Grounds of appeal

6.The applicant stated the following grounds in the Notice of Motion filed on 3 March 2022:

(1)  There is some error in law in the decision. The decision maker just relied on the Country of Origin information (“COI”) and previous facts to reject the claim while the real-life situation is different from what is mentioned in the COI.

(2)  The immigration officer and the court ignored the evidence of violence towards minorities, searching for unrealistic silver lining.

(3)  The decision betrayed a biased and formulaic approach which is unlikely to fairly assess the danger to his life and is clearly calculated to reject his claim.

Analysis and disposition

7.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.

8.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).

9.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.

10.The applicant was late for more than one month in filing his Notice of Motion. The delay is substantial. He explained in his affirmation that he was late in doing so because he was not going out from home under the very critical situation in Hong Kong, without specifying what critical situation he was referring to.

11.If he was referring to the pandemic in Hong Kong, the pandemic had become much more serious when he filed the present application in early March 2022, compared with the situation in January 2022 before the expiry of the prescribed deadline. The court business was also under normal operation at the relevant period of time. In such circumstances, his explanation cannot constitute good ground for the court to grant extension of time.

12.In any event, the applicant’s grounds in the present application are just bare assertions not supported by any particulars or evidence. He failed to show the Court of Appeal was wrong in dismissing his application and 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 refuse to exercise our discretion to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 3 March 2022.

The Applicant, acting in person