RE MUHAMMAD AZAM AND ANOTHER

CAMP 86/2021, [2023] HKCA 487

On Appeal From [2020] HKCFI 181

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 86 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1474 OF 2018)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.  This court handed down judgment on 3 August 2022 ([2022] HKCA 1130) dismissing the 1^st and 2^nd applicants’ application to extend time to appeal against an order of DHCJ Bruno Chan given on 9 July 2020 in which he refused the 1^st and 2^nd applicants’ application for leave to apply for judicial review in respect of their non‑refoulement claim. The 2^nd applicant is the 1^st applicant’s minor child.

2.  The facts and issues in the application before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

3.  On 30 September 2022, the 1^st and 2^nd applicants filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal. However, it was out of time, as section 24(2) of the Hong Kong Court of Final Appeal Ordinance (“HKCFAO”) (Cap. 484) stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from, even after excluding the Summer Vacation (1 - 31 August) as specified in section 31(1) of the High Court Ordinance (Cap. 4).

4.  However, under sections 24(5) and 24(6) of the HKCFAO, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period. In the exercise of our discretion whether or not to extend the appeal period, we should consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party.

5.  In the present case, as the delay is insignificant, we would focus on the merits of this application.

6.  The 1^st and 2^nd applicants stated the following in the Notice of Motion:

“I would like to infomr (sic) the Honourable Court that there is some error in law in my decision. Decision maker just relied on COI Information and my previous facts which were in favour while rejecting my claim. Actual life occur different situation then what is mentioned in COI Information. The Officer and cours (sic) prefers to ignore the overwheming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary (sic) a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

7.  In compliance with the directions of the Registrar of Civil Appeals given on 30 September 2022, the 1^st and 2^nd applicants lodged their written submissions on 13 October 2022. As we consider it appropriate, this Notice of Motion is determined on paper without an oral hearing.

8.  In the 1^st and 2^nd applicants’ written submissions, they quoted passages from ST v Director of Immigration[1] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on the “high standards of fairness”. They further submitted that high standards of fairness applied to the determination of a non-refoulement claim and the Board had acted in a procedurally unfair manner without properly assessing their credibility. Lastly, they referred to section 37ZT of the Immigration Ordinance (Cap. 115) which concerns the late filing of a notice of appeal to the Board. However, they did not explain how the aforesaid cases and legal provisions were related to or would assist their case. We have taken note of the fact that the 2^nd applicant is a minor, but as stated in paragraph 23 of our judgment, having separately considered his position and applied the approach in Fabio Arlyn Timogan quoted there, we are satisfied that there is no merit at all in his application.

9.  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.

10.  Having regard to the judgment of this court, the 1^st and 2^nd applicants’ intended appeal has no merit at all. No question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

11.  Nor do we see any basis for granting leave under the “or otherwise” limb under section 22(1)(b).

12.  By reason of the above, the Notice of Motion filed on 30 September 2022 is dismissed.