RE MOSHSIN ALI

CAMP 182/2023, [2026] HKCA 1198

On appeal from [2022] HKCFI 1685

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 182 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 2214/2019)

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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.  This is an application for extension of time to appeal against the decision of DHCJ To (“the Judge”) dated 8 June 2022[1] (“the Decision”) refusing to re-open the applicant’s withdrawn application for leave to apply for judicial review. The intended judicial review was against the decision of the Director of Immigration dated 3 July 2019 (“the Director’s Decision”) refusing the applicant’s request to make a subsequent non-refoulement claim.

2.  The procedural background to this case has been set out in the Decision at [1]-[5] and will not be repeated.  Notably, before the applicant’s leave application was heard by the Judge, the applicant filed an affirmation on 17 June 2021 seeking to withdraw his leave application (“the Withdrawal Application”), claiming that the problems in his country were resolved and that he wished to return home as soon as possible (see the Decision at [6]).

3.  After considering the Withdrawal Application and the matters stated in the applicant’s supporting affirmation, the Judge on 24 June 2021 ordered that the leave application be withdrawn (“the Withdrawal Order”).  By the Decision, the Judge refused to re-open the applicant’s withdrawn application for leave to apply for judicial review against the Director’s Decision.

4.  By a decision dated 2 February 2023[2] (“the EoT Decision”), the Judge refused to extend time for the applicant to appeal against the Decision.

The present application for extension of time to appeal

5.  According to the court’s record, a copy of the Decision and a sealed copy of the Judge’s order were sent by post to the applicant at his last known address on 8 June 2022, which were not returned undelivered.

6.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days from the date of the Decision.

7.  Subsequently, the applicant made an application in the court below for an extension of time to appeal against the Decision, which was dismissed by the Judge for the reasons stated in the EoT Decision.

8.  By a Summons filed on 5 May 2023, the applicant renewed his application for an extension of time to appeal before this court.

9.  In the Summons and his supporting affirmation, the applicant contended that the court’s letter enclosing the Decision was lost in the post, and that he only learned of the contents of the Decision “after searching the court file”.  

10.  In his written submissions lodged on 18 May 2023, the applicant referred, inter alia, to the well-established principles in ST v Director of Immigration (sic)[3] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.  

11.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

Discussion

12.  The Decision was sent to the last known address of the applicant, but was not returned undelivered.  The inference to be drawn is that the applicant had notice and knowledge of the Judge’s order and the contents of the Decision in the period within which he was permitted to lodge an appeal.  In any event, it was incumbent upon the applicant to notify the court of a change of address, if any, as soon as possible.  The consequences of failure to do so must lie with him. 

13.  We are therefore of the view that the applicant has proffered no reasonable reason or explanation for the delay in bringing the intended appeal.

14.  There is a delay by the applicant (of around 11 weeks) in renewing the application for an extension of time to appeal before this court.  The delay is substantial and thus the present application is liable to be dismissed on this basis alone.  However, we havenonetheless proceeded to consider the merits of the intended appeal.

15.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review.  It is necessary to identify some error on the part of the judge that would justify this court in intervening: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and the court will only reverse that decision if an appellant could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

16.  The applicant has wholly failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal. 

17.  In the present case, the Judge made the Withdrawal Order upon the applicant’s ex parte Withdrawal Application, and we can see no reason why the Judge could be said to have erred in doing so.

18.  For the reasons stated in the Decision, the Judge considered that the Withdrawal Application was lodged on the basis of an informed decision voluntarily, deliberately or consciously made by the applicant and thus the Withdrawal Order was regular and valid.  We agree.

19.  Finally, there was no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in his written submissions had not been applied in the consideration of his leave application by the Judge.

20.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The Summons filed on 5 May 2023 is accordingly dismissed.