NAVEED JAN v. THE PETITION TEAMS (SECURITY BUREAU)

CAMP 85/2021

[2022] HKCA 776

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 85 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 593 OF 2018)

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J U D G M E N T

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Hon Kwan VP (handing down 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 (Kwan VP and Chow JA) handed down on 15 October 2021 ([2021] HKCA 1498). The Court of Appeal dismissed the applicant’s application for leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan on 4 August 2020 ([2020] HKCFI 1781) refusing to grant extension of time to seek leave to apply for judicial review concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 28 December 2021 that the applicant shall lodge written submissions on or before 11 January 2022. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. The applicant did not lodge any written submissions by the prescribed deadline. Having considered the papers of this case, we think it is appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of Pakistan. He entered Hong Kong illegally on 29 November 2014 and was arrested by the police on 10 December 2014. He raised his non-refoulement claim on 12 December 2014 on the basis that he will be harmed or killed by the Taliban as his family failed to pay them extortion money.

4.  He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. It was refused by the judge on 23 February 2021[1].

5.  The applicant renewed his application to the Court of Appeal for extension of time to appeal on 17 March 2021. The application was dismissed by the Court of Appeal on 15 October 2021 as the applicant failed to show any prospect of success in his intended appeal.

Grounds of appeal

6.  The grounds of appeal in the Notice of Motion filed on 28 December 2021 may be summarized as follows:

(1)  The applicant did now know the failure to lodge the skeleton submission would cost him an oral hearing which he specifically requested for.

(2)  The judges were procedurally unfair in the decision and the Court of First Instance did not judge fairly.

(3)  The Board and the Director gave their decisions on the basis of other applicant but his case is genuine. He can provide more proof if they asked him to. The Board mentioned that he can relocate to anywhere but it is not possible for him to relocate in Pakistan.

Analysis and disposition

7.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484, “the Ordinance”), 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. Section 24(5) further provides that the Court of Appeal may, if it considers appropriate, extend the time for making application for leave to appeal.

8.  Good grounds have to be shown by the applicant for the court to grant an extension of time. The relevant factors in considering whether extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

9.  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.

10.  The applicant was 40 days late in filing his Notice of Motion. The delay is substantial. He explained in his affirmation he did not know there is a time limit for filing the Notice of Motion. This explanation is not acceptable, considering that the applicant had previously taken out a summons for extension of time to appeal which reflected that he must have been aware there are time limits in respect of certain court procedures. Under these circumstances, the applicant failed to show any good ground for the court to grant an extension of time for him to file the Notice of Motion.

11.  In any event, the applicant’s grounds of appeal are just bare assertions which do not constitute reasonably arguable grounds against the decision of the Court of Appeal. He has not demonstrated that the Court of Appeal was wrong in dismissing his application and failed to identify 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).

12.  We refuse to exercise our discretion in his favour and dismiss the Notice of Motion filed on 28 December 2021 for leave to appeal to the Court of Final Appeal out of time.