Mohammed Afsar Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 281/2021

[2022] HKCA 1144

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 281 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1809 OF 2018)

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BETWEEN

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Before:  Hon Kwan VP and Chu JA in Court

Date of Written Submissions:  18 May 2022

Date of Judgment:  5 August 2022

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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 Chu JA) handed down on 16 March 2022 ([2022] HKCA 351). 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 9 July 2020 ([2020] HKCFI 1479) 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 6 May 2022 that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged his written submissions on 18 May 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 India. He entered Hong Kong as a visitor on 23 November 2013 and was arrested for overstaying on 3 March 2014. He submitted a non-refoulement claim on the same day on the basis that he would be harmed or killed by his wife’s family because of their alleged opposition to his marriage.

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 over 3 weeks. It was refused by judge on 19 July 2021[1].

5.On 26 July 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 16 March 2022 as the applicant failed to show any prospect of success in his intended appeal.

Grounds of appeal

6.The applicant stated his grounds of appeal in his Notice of Motion which may be summarised as follows:

(1)  The judge had failed to consider all applicable grounds on non-refoulement claims, on the grounds of risk of violation of articles 2 and 22 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383) in particular.

(2)  The judge was wrong in accepting the Board’s finding to conclude that the persecution risk failed.

(3)  His life is still in danger in his country.

7.His written submissions may be summarised as follows:

(1)  High standards of fairness are required in the determination of a torture claim on the part of the decision maker.

(2)  The Board acted in a procedurally unfair manner without properly assessing his credibility.

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. Good grounds have to be shown by the applicant for the court to grant an extension of time pursuant to section 24(5) of the Ordinance (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 3 weeks in filing his Notice of Motion. He explained in his affirmation that he forgot to go to the court to get the judgment on 16 March 2022 so he needed to wait for the letter from the court. In fact, the court had informed the applicant in the letter dated 8 March 2022 that he was not required to attend court to receive the judgment due to public health considerations and the judgment would be uploaded to the judiciary website within the same day of handing down. Under these circumstances, his explanation for the delay cannot constitute good ground for the court to grant extension of time.

11.In any event, the applicant’s grounds in the present application are just bare assertions which are not supported by any particulars or evidence. He failed to show that 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).

12.For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 6 May 2022.

The Applicant, acting in person