RE FAIZ KHAN

CACV 303/2022

[2023] HKCA 451

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 303 OF 2022

(ON APPEAL FROM HCAL NO 658 OF 2019)

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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 16 February 2023, the applicant filed a Notice of Motion out of time to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 19 December 2022 (“the Judgment”) ([2022] HKCA 1849). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung dated 25 July 2022, refusing his application for leave to apply for judicial review ([2022] HKCFI 2100).

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 16 January 2023.  Accordingly, the applicant was late for a month in taking out his application for leave to appeal to the Court of Final Appeal.

5.  Although 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, the applicant stated:

“DIRECTOR OF IMMIGRATION AND TORTURE CLAIMS APPEAL BOARD DISMISSED MY NON REFOULEMENT CLAIM. THE HIGH COURT AND THE COURT OF APPEAL DISMISSED MY LEAVE TO APPLY FOR JUDICIAL REVIEW. I WANT TO GO TO C.F.A..” (sic)

7.  In his supporting affirmation filed on 16 February 2023, the applicant stated:

“AFFIRMATION FOR APPLY OF NOTICE OF MOTION FOR GO TO THE COURT OF FINAL APPEAL BUT OUT OF SCHEDULED TIME. PLEASE ACCEPT MY APPLICATION ATTACHED A AND B. PLEASE ACCEPT MY APPLY.”[1] (sic)

8.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 2 March 2023.  In those submissions, he repeated the factual basis and procedural history of his non-refoulement claim.  He asserted that his life would be under threat and he would be beaten or killed should he return to his home country and that the situation in his home country was very bad.  He further asserted he was not satisfied with the Board’s Decision.

9.  At the outset, the applicant had failed to give any reason, let alone good reason for his substantial delay of one month in taking out his application for leave to appeal to the Court of Final Appeal.  More importantly, his intended appeal is wholly without substance.  The allegations made in his Notice of Motion and written submissions are all bare and vague allegations unsupported by any evidence.  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.

10.  Further, 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.

11.  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.

12.  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 is dismissed.