Re Zareed Jamshaid

CAMP 443/2021

[2022] HKCA 1043

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 443 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 2917 OF 2018)

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Before:  Hon Au and Chow JJA in Court

Date of Judgment:  22 July 2022

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J U D G M E N T

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

1.On 11 May 2022, the applicant filed a Notice of Motion together with a supporting affirmation to apply for leave to appeal to the Court of Final Appeal out of time against this Court’s (Au and Chow JJA)  judgment of 31 March 2022 (“the Judgment”)  ([2022] HKCA 474). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge P Li (“the Deputy Judge”)  dated 10 November 2020, refusing his application for leave to apply for judicial review (“the Leave Decision”)  ([2020] HKCFI 2835).

2.The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal if 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.

4.Pursuant to section 24(2)  of the HKCFAO, an appellant has 28 days from the date of the Judgment to seek leave to appeal to the Court of Final Appeal.  In the present case, the deadline for the applicant to seek leave to appeal against the Judgment fell on 28 April 2022.  Accordingly, the applicant was 13 days late in taking out his application for leave to appeal to the Court of Final Appeal.

5.As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the Court has a discretion to extend time under section 24(5)  of the HKCFAO only if good and sufficient grounds are shown by the applicant: see Re Imran Muhammad [2021] HKCA 482 at [9] and the authorities cited therein.  In deciding whether there are such good grounds, the Court is entitled to take into account (a)  the length of the delay; (b)  the reasons for the delay; (c)  the chances of the appeal succeeding if an extension of time is granted; and (d)  the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another [2021] HKCA 83 at [4] and the authorities cited therein.

6.In his Notice of Motion, the applicant stated:

“THE HIGH COURT AND THE COURT OF APPEAL DISMISSED MY LEAVE TO APPLY FOR JUDICIAL REVIEW BUT I WISH THE COURT OF FINAL APPEAL WILL CONSIDER MY LEAVE TO APPLY FOR JUDICIAL REVIEW.” (sic)

7.In his supporting affirmation, the applicant stated:

“APPLY OF NOTICE OF MOTION BUT NOT OF SCHEDULED TIME PLEASE ACCEPT MY APPLY. PLEASE GRANT MY LEAVE.” (sic)

8.Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 25 May 2022.  In those submissions, he reiterated the factual basis and procedural history of his non-refoulement claim.  He also contended that his life was under threat in Pakistan.

9.At the outset, the applicant’s delay of 13 days was not insignificant and he failed to provide any reason, let alone good and sufficient reason, for his delay.

10.More importantly, general assertions of his fear if refouled do not constitute proper grounds of appeal.  Further, as stated at [18] of the Judgment, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  The applicant did not identify any error in the Judgment and his intended appeal must fail on this basis alone.

11.In any event, the applicant’s contentions are fact-specific and do not relate to any question of great general or public importance.

12.Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

13.For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant him extension of time to pursue a hopeless appeal.  Accordingly, the Notice of Motion filed on 11 May 2022 is dismissed.

The applicant acting in person