Re Afaq Muhammad

CACV 529/2019

[2022] HKCA 1288

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 529 OF 2019

(ON APPEAL FROM HCAL 2984 OF 2018)

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Before:  Hon Chu JA, Barma JA and Au JA in Court

Date of Judgment: 9 September 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 7 May 2021, this court (Yeung, Lam VPP and Barma JA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung given on 8 November 2019 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board dismissing his appeal from the decision of the Director of Immigration rejecting his non‑refoulement claim.

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 24 December 2021, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“… there is some error in law in my decision. Decision maker just relied on COL information and my previous facts which were in favour while rejecting my claim. Actual life occur different situation then what is mentioned in COL Information. The Officer and courts prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

4.In his supporting affirmation filed on 24 December 2021, the applicant stated that he “did not receive the judgment within the time stipulated for appeal”.

5.In breach of Practice Direction 2.1, the applicant failed to lodge any written submissions with the court.

6.Having considered the applicant’s Notice of Motion and affirmation, 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 failed to explain how and when he eventually came to know about the judgment of this court.  We are therefore of the view that the applicant has failed to provide a reasonable explanation for the substantial delay of over 6 months.

8.In any event, we are of the view that the matters stated 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.

9.Neither the Notice of Motion nor the supporting affirmation contain any particulars as to the alleged error in our judgment and they raise no ground that is reasonably arguable before the Court of Final Appeal.

10.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 dated 24 December 2021 is dismissed.

The applicant acting in person