RE RASOOL AKHTAR

CAMP 322/2021

[2022] HKCA 1578

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 322 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2848 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court):

1.  On 10 February 2022, this Court handed down a decision ([2022] HKCA 208)  dismissing the applicant’s renewed application for extension of time to appeal an order of Deputy High Court Judge K W Lung given on 5 August 2020 refusing his application for leave to apply for judicial review in respect of his non-refoulement claim.

2.  On 16 May 2022, the applicant filed a notice of motion and affirmation applying for leave to appeal this Court’s order to the Court of Final Appeal out of time.  The applicant has not lodged any written submission.

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 decision.  We will not repeat them.

5.  Section 24(2)  of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’)  (Cap. 484)  provides that 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 extend the time for the filing of the notice of motion.

6.  The applicant’s present application is out of time by over two months.  The applicant simply stated in his affirmation that he contracted Covid-19 in the 5^th wave in Hong Kong without further explanation.

7.  As to the merit of the intended appeal, 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.

8.  The applicant in his notice of motion stated that there was error in his decision.  He complained that the decision maker relied on country of origin information and rejected his claims.  The decision was biased and it adopted a ‘formula approach’.  There was overwhelming evidence of violence against him.  There was danger to his life.  He complained he did not have legal representation.

9.  We are of the view that the grounds and arguments put forward by the applicant do not constitute viable grounds for giving leave to appeal.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b)  of the HKCFAO.

10.  Nor do we see any basis for leave under the ‘or otherwise’ limb under section 22(1)(b).

11.  As the statutory requirements for giving leave to appeal are not met, the intended appeal has no merit and there is no basis for us to extend the time for the filing of the notice of motion.  Accordingly, we dismiss the notice of motion.