Re Daptari Mohammad Nawem

CAMP 258/2022, [2024] HKCA 397

On Appeal From [2022] HKCFI 265

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 258 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2363 OF 2018)

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Decision

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Hon Cheung JA (giving the Decision of the Court) :

1.On 16 March 2023, this Court handed down the decision ([2023] HKCA 346) dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge K W Lung given on 21 January 2022 refusing his application for extension of time for leave to apply for judicial review in respect of his non‑refoulement claim.

2.On 14 April 2023, the applicant filed a notice of motion and affirmation applying for leave to appeal this Court’s order to the Court of Final Appeal out of time.  The applicant lodged written submission on 27 April 2023.

3.Having considered the applicant’s notice of motion, affirmation, and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have, therefore, proceeded to determine the applicant’s application on the basis of the documents in the case.

4.The background to this case and the applicant’s claim have been set out in our decision.  We will not repeat them.

5.Section 24(2) of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’) (Cap. 484) provides that 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.  Section 24(5) further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

6.The applicant’s present application is out of time by one day only.  In the applicant’s affirmation, the applicant explained that the delay was due to not receiving the judgment within the time stipulated for appeal.  The delay of one day in any event is insignificant.  We will accept the applicant’s delay and focus on the merits.

7.As to the merit of the intended appeal, section 22(1)(b) of the HKCFAO provides that leave to appeal to the Court of Final Appeal may be granted 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.

8.The applicant stated the following in the notice of motion :

‘... 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. Acual life occur different situation then what is mentioned in COL information. The Officer and [Courts] ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision [betrays] a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.’

9.In summary the applicant stated the following in the written submission :

1)  1^st Ground

1(1): High standard of fairness is required and the applicant’s life and limb are in jeopardy: ST v Director of Immigration [2014] 4 HKLRD 277.

1(2): The Decision has significant effect on the applicant’s torture claim.

1(3): High standard of fairness is required in torture claim determination.

1(4): In Secretary v Prabakar [2005] 1 HKLRD 289, what is appropriate standard of fairness depends on examining all aspects including context and subject nature. There must be rigorous examination and anxious scrutiny. The applicant who carries the burden of proof should be given every reasonable opportunity to establish his claim.

2(1): The Board erred in approach the matter by seeing whether it could find fault in the decision of the Immigration Officer.

2(2): The Board should have considered country conditions.

2)  2^nd Ground

3: There are minimum standards of procedural fairness: Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 at 383D; Pearl Securities Ltd v Stock Exchange of Hong Kong [1999] 2 HKLRD 243 at 253C-D.

4: The decision maker’s duty to act fairly is a constitutional duty: Michael John Treloar Rowse v Secretary for the Civil Service & Ors [2008] 5 HKLRD 217.

10.We are of the view that the grounds and arguments put forward by the applicant do not constitute viable grounds for giving leave to appeal.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

11.The notice of motion contains broad and vague assertions without specific reference or elaboration as to how those broad notions relate to the applicant’s case.  As for the written submission, it contains frequently cited case authority applicable in non-refoulement claims but without any application of those legal principles to the particulars of the applicant’s case.

12.Nor do we see any basis for the ‘or otherwise’ limb under section 22(1)(b).

13.As the statutory requirements for giving leave to appeal are not met, the intended appeal has no merit and there is no basis for us to extend the time for the filing of the notice of motion.  Accordingly, we dismiss the notice of motion.