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CAMP 454/2021, [2023] HKCA 813
On Appeal From [2020] HKCFI 247
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 454 OF 2021 (ON AN INTENDED APPEAL FROM HCAL NO 2573 OF 2018)
_________________________
| RE: |
BAL SWARAN SINGH |
Applicant
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_________________________
| Before: |
Hon Yuen and G Lam JJA in Court |
| Date of Written Submissions: |
28 December 2022 |
| Date of Judgment: |
12 July 2023 |
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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 14 October 2022 ([2022] HKCA 1520) dismissing the applicant’s application to extend time to appeal against an order of DHCJ K.W. Lung given on 23 January 2020 in which he refused to grant leave to the applicant to apply for judicial review in respect of his non‑refoulement claim.
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 12 December 2022, the applicant 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. The deadline for filing the Notice of Motion expired on 11 November 2022.
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, the applicant was late by more than 1 month which is substantial. The applicant explained in his supporting affirmation that he was uneducated and had language problem and that he needed assistance to prepare the Notice of Motion but unfortunately, due to the Covid pandemic, it took him more time to find the necessary assistance causing the delay. How the pandemic affected his finding assistance is a bare assertion and we do not accept it as a good reason for the substantial delay.
6. Moreover, the applicant has not shown any merits in this intended application for leave to appeal to the Court of Final Appeal. He advanced the following in the Notice of Motion:
“1. There is some error in law in my decision. The decision maker just relied on COL information any my previous facts, which were favour on rejecting my claim.
2. The learned 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 refusing my application for Judicial Review.
3. Actual life occur different situation then mentioned COL information. Officer and courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining.
4. The Judge did not apply the law properly.”
7. In compliance with the directions of the Registrar of Civil Appeals made on 12 December 2022, the applicant lodged his written submissions on 28 December 2022. As it is appropriate to do so, the Notice of Motion is determined on paper without an oral hearing.
8. In his written submissions, he quoted some articles of international treaties and local legislations on the protection of political, civil and humans rights as well as cases on public law without any explanation and elaboration how they may apply and assist his case.
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 applicant’s 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 12 December 2022 is dismissed.
(Maria Yuen)
Justice of Appeal |
(Godfrey Lam)
Justice of Appeal |
The applicant, unrepresented, acting in person
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