RE QASIM MAIRAJ DIN

CAMP 252/2022, [2024] HKCA 1040

On appeal from [2021] HKCFI 3704

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 252 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 125 OF 2019)

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J U D G M E N T

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Hon Kwan Ag CJHC (giving the Judgment of the Court):

1.  This is the applicant’s notice of motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 15 September 2023 ([2023] HKCA 1045). The Court of Appeal declined to grant extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 8 December 2021 refusing to grant leave for the applicant to bring judicial review against the decision of the Torture Claims Appeal Board concerning the applicant’s non‑refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the notice of motion shall be determined on paper without an oral hearing. The applicant lodged his written submissions on 15 November 2023. Having considered his written submissions and the papers, we think it is appropriate to determine this application on paper.

Grounds of appeal

3.  In his notice of motion, the applicant stated that he was not satisfied with the decisions of the Director of Immigration and the Torture Claims Appeal Board but the court did not grant him leave so he wants to go to the Court of Final Appeal.

4.  In his written submissions, he reiterated the problems he faced in his home country and the procedural history of his claim. He further stated that he would speak for the great interest of all asylum seekers.

Analysis and disposition

5.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), an 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. Good grounds have to be shown for the court to grant an extension of time pursuant to section 24(5) of the Ordinance (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

6.  Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.

7.  The applicant was late for 19 days in filing the notice of motion. He explained that he did not get the decision on time.

8.  The court sent a notice of handing down judgment to the applicant’s address by post on 12 September 2023 informing him that the judgment would be handed down on 15 September 2023 and uploaded to the Judiciary website within the same day of handing down. The court then sent the judgment and the sealed order to the applicant by post on 15 September 2023. We note that the applicant’s address stated in the present application is different from the one he provided to the court in the previous application but he has not filed any notice of change of address for service informing the court of the change.

9.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15). Therefore, the applicant’s explanation for the delay is not justifiable. There is no good ground for the court to grant extension of time for him to file the notice of motion.

10.  In any event, the applicant’s grounds are just bare assertions without particulars or evidence in support. In particular, the applicant has not identified any mistakes in the judgment of the Court of Appeal nor has he raised any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

11.  For the above reasons, we decline to exercise our discretion to grant leave to appeal to the Court of Final Appeal and dismiss the notice of motion filed on 1 November 2023.