RE GURUNG BIJAY

CAMP 309/2022, [2025] HKCA 161

On Appeal From [2024] HKCA 530

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 309 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 429 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 15 November 2024, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal out of time against this court’s judgment of 12 June 2024 (“the Judgment”) ([2024] HKCA 530).  In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Campbell-Moffat J (“the Judge”) dated 29 March 2022, by which the Judge refused to grant him extension of time and dismissed his application for leave to apply for judicial review ([2022] HKCFI 842).

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.  Pursuant to section 24(2) of the HKCFAO, an appellant has 28 days from the date of the Judgment to seek leave to appeal to the Court of Final Appeal.  In the present case, the deadline for the applicant to seek leave to appeal against the Judgment fell on 10 July 2024.  Accordingly, the applicant was over four months late in taking out his application for leave to appeal to the Court of Final Appeal.

5.  As 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:

“The decision were not reasonable and Indeed the right and to is protected were not, The Adjudicator was proceduraly in proper and for in fair when assessing whether to accept explanation provided by me and unreasonable requires me to response. The decision of the Torture Claim Appeal Board did not Include specific assessment of the applicant the court of the appeal held in other cases that the exitance of legal represention at the Director stage does not necessary mean that there is no potention specific basic which had been advance of properly advance, Because of the assense of Legal Representative.” (sic)

7.  The applicant also filed an affirmation on 15 November 2024, enclosing 50 pages of voluminous documents including different grounds and submissions.  As the affirmation was not filed in compliance with Practice Direction 2.1, pursuant to the directions of the Registrar of Civil Appeals Master MK Liu given on 9 December 2024, the said affirmation will not be considered by the court.

8.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 2 December 2024.[1] In those submissions, the applicant reiterates the factual basis and procedural history of his non‑refoulement claim, and further states that he is currently in detention and cannot return to Nepal as his life is still not safe in his home country.

9.  At the outset, the applicant’s delay of over four months is substantial and he fails to provide any reason, let alone good and sufficient reason, in support for his delay.

10.  Further, the applicant’s application is plainly devoid of merit.  His assertions are all vague, bare and unsupported by any specific particular or evidence.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  His allegations are mainly directed at the Director and the Board’s Decisions and he fails to identify any specific error in the Judgment.  They do not constitute proper grounds of appeal.

11.  In any event, even taking his case at its highest, his allegations remain fact-specific and do not relate to any question of great general or public importance.

12.  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.

13.  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 filed on 15 November 2024 is dismissed.