RE ZUBAIR MUHARRAM

CAMP 241/2020

[2023] HKCA 544

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 241 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 1452 of 2018)

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J U D G M E N T

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Hon Chu VP giving the Judgment of the Court:

1.  On 23 July 2021, this Court (Yeung VP and Chu JA) handed down our judgment ([2021] HKCA 1028) refusing to extend the time for the applicant to appeal the decision of Deputy High Court Judge Lung given on 18 November 2019 which refused to extend the time for him to apply for judicial review and dismissed his application for leave to apply for judicial review.

2.  On 1 March 2023, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal. Despite directions given by the Registrar of Civil Appeals, he has not put in a written submission to support the application.

3.  Having considered the applicant’s notice of motion and affirmation, 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 judgment. We will not repeat them.

5.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that the notice of motion to apply for leave to appeal shall be filed within 28 days from the date of the judgment to be appealed from. Under section 24(5), the Court may extend the time for the filing of the notice of motion. In deciding whether to extend time, the Court will have regard to (1) the length of the delay; (2) the reasons for the delay; (3) the merits of the intended application; and (4) the prejudice that may occasioned to the other party if the time is extended.

6.  The applicant’s notice of motion was late by one year and six months, which is a very serious delay. The applicant did not give any explanation for his delay. He only stated in his affirmation that he is unrepresented and has no means to seek proper legal advice, and that there is a good ground of appeal and the merits of this ground constitute sufficient reason for the Court to exercise its discretion to allow the application to be made out of time. There was, however, no elaboration on what the ground of appeal was. We do not accept that the applicant has satisfactorily explained his delay.

7.  As to the merits of the intended application, section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance 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 notice of motion stated the following in support of the application:

(1)  The judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration in refusing his application for judicial review.

(2)  The judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration when the Director was required to give reasons for his decision.

9.  What was put forward in the notice of motion and written submission do not afford any basis for granting leave to appeal. Importantly, they all concern the applicant’s claim and do not show that the intended appeal involves any question of great general or public importance.

10.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

11.  As the statutory requirements for giving leave to appeal are not met, it is futile to extend the time for the filing of the notice of motion. Accordingly, we dismiss the notice of motion.