Re Abdul Ghafoor

CAMP 29/2022

[2022] HKCA 1728

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 29 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 803 OF 2018)

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Before:  Hon Cheung and Au JJA in Court

Date of Judgment:  25 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 17 October 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 against this Court’s judgment of 23 September 2022 (“the Judgment”)  ([2022] HKCA 1390). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge CP Pang (“the Deputy Judge”)  dated 18 March 2021, by which the Deputy Judge refused his application for leave to apply for judicial review ([2021] HKCFI 570).

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.In his Notice of Motion, the applicant stated:

“DIRECTOR OF IMMIGRATION AND TORTURE CLAIMS APPEAL BOARD DISMISSED MY NONREFOULEMENT CLAIM. THE HIGH COURT AND THE COURT OF APPEAL DISMISSED MY LEAVE TO APPLY FOR JUDICIAL REVIEW. ALL THIS JUDGMENTS ARE NOT GOOD FOR ME. I WANT TO GO TO C.F.A.” (sic)

5.In his supporting affirmation, the applicant stated:

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

6.Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 31 October 2022.  In those submissions, he merely repeated the factual basis and procedural history of his non-refoulement claim.  He claimed that the Director of Immigration and the Board had made any errors and as the High Court and the Court of Appeal did not accept his arguments, he wished that the Court of Final Appeal would give “a good decision on to me and all [his] asylum seeker friend because [they] all are facing same problem”.

7.At the outset, pursuant to section 24(2)  of the HKCFAO, the application for leave to appeal to the Court of Final Appeal should be made within 28 days from the date of the judgment to be appealed from.  The deadline for the applicant to seek leave to appeal to the Court of Final Appeal against the Judgment thus fell on 21 October 2022.  As such, the applicant is within time in taking out his present application.

8.That said, in our view, his intended appeal is clearly without substance.  At the outset, the allegations made in his Notice of Motion and written submissions are all bare and vague allegations unsupported by any evidence.  He also failed to condescend upon particulars or provide any evidence in support as to how “all asylum seekers are facing the same problem”.  More importantly, he did not identify any specific error in the Judgment with sufficient particulars. General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. Accordingly, the applicant’s intended appeal plainly has no merit.

9.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.

10.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.

11.For these reasons, the applicant’s intended appeal has no merit.  Accordingly, the Notice of Motion filed on 17 October 2022 is dismissed.

The applicant acting in person