Re Zeeshan Ul Haq

CAMP 124/2021

[2022] HKCA 1703

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 124 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 583 OF 2018)

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Before:  Hon Chu VP and Au JA in Court

Date of Judgment:  16 November 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 2 August 2022, the applicant filed a Notice of Motion and a supporting affirmation to apply for leave to appeal to the Court of Final Appeal out of time against this Court’s judgment of 22 November 2021 (“the Judgment”) ([2021] HKCA 1729).  In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 4 August 2020, by which the Deputy Judge refused his application for leave to apply for judicial review ([2020] HKCFI 1780).

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.Further, pursuant to section 24(2) of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for the applicant to seek leave to appeal to the Court of Final Appeal against the Judgment fell on 20 December 2021.  The applicant was therefore over seven months 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 filed on 2 August 2022, the applicant stated:

“DIRECTOR OF IMMIGRATION AND TORTURE CLAIMS APPEAL BOARD DISMISSED MY NONREFOULEMENT CLAIM. I WAS NOT [SATISFIED] SO I CAME TO THE HIGH COURT FOR LEAVE TO APPEAL FOR JUDICIAL REVIEW. THE HIGH COURT AND THE COURT OF APPEAL DISMISSED BY APPLY. I WANT TO GO TO THE COURT OF FINAL APPEAL.” (sic)

7.In his supporting affirmation, the applicant further stated:

“AFFIRMATION FOR APPLY OF NOTICE OF MOTION BUT OUT OF SCHEDULED TIME. PLEASE ACCEPT MY APPLY.” (sic)

8.Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 16 August 2022. In those submissions, he merely repeated the factual basis and procedural history of his non-refoulement claim, claiming that he faced a very big problem in his home country and that at any time all his enemies would kill him if they had the chance, and that “all asylum seekers are facing the same problem” and “no one gets justice.

9.At the outset, the applicant’s delay of over seven months was most substantial and he failed to provide any good reason or evidence to explain his delay.

10.More importantly, his intended appeal has no merit at all.  At the outset, the allegations made in his Notice of Motion and written submissions are all bare and vague allegations unsupported by any evidence.  More importantly, he failed to identify any specific error in the Judgment with any particulars.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  He also failed to condescend upon particulars or provide any evidence in support of his allegation that “all asylum seekers are facing the same problem”; or in any event, how his case has any relevance to other asylum seekers’ cases.  His bare assertion that “no one gets justice” was also made without any basis.  Accordingly, the applicant’s intended appeal plainly lacks merit.

11.Further and in any event, even taking his case at its highest, his allegations 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 2 August 2022 is dismissed.

The applicant acting in person