RE SUBRAMANIAN SUDHAGAR

CACV 41/2022

[2022] HKCA 1352

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 41 OF 2022

(ON APPEAL FROM HCAL 1854 OF 2018)

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J U D G M E N T

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Hon Au JA (giving judgment of the court):

1.  On 13 June 2022, 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 (Au JA and Lisa Wong J) judgment of 13 May 2022 (“the Judgment”) ([2022] HKCA 676). In the Judgment, we dismissed the applicant’s appeal against the decision of Yau J (“the Judge”) dated 13 March 2019, by which the Judge refused his application for leave to apply for judicial review ([2019] HKCFI 648).

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.  Further, pursuant to section 24(2) of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from. In the present case, the deadline for the applicant to seek leave to appeal to the Court of Final Appeal against the Judgment fell on 10 June 2022. Accordingly, the applicant was late for three days 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:

“I would like to inform to Court of Final Appeal. There are some error in law to decision maker. I am disagree with the decision made by the Director of Immigration, as well as the decision made by the Adjudicator of Torture Claim Appeal Board. I do not think my case was determined fairly. It’s toward to my life still danger in India.” (sic)

7.  In his supporting affirmation filed on 13 June 2022, the applicant further stated:

“Affirmation for leave to time extension for my Notice of Motion. I did not aware of my deadline to file my Notice of Motion seeking time extension.” (sic)

8.  Pursuant to Practice Direction 2.1, the applicant lodged written submissions on 24 June 2022. In those submissions, he claimed that no language assistance was given to him with regards to his BOR2 risk assessment and that there had been a lack of sound judgment and fairness throughout the non-refoulement claim process. It is noted that his submissions were all general and bare propositions without specifying how they are relevant to his case.

9.  Although the applicant’s delay of three days is not substantial, we are of the view that his intended appeal has no merit at all. The matters raised in his Notice of Motion and supporting affirmation are all general and bare allegations without any specific particulars or explanation. General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. In any event, his allegations are all directed to the Director of Immigration and the Board and he failed to identify any specific error in the Judgment with sufficient particulars.

10.  Further, his complaint in relation to the lack of language assistance for his BOR2 assessment had been considered and rejected by this Court at [18] and [23] of the Judgment. It is well established that the Court of Appeal will not allow an application of this nature to be deployed as an occasion for re-running the arguments which had already been canvassed at the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014) at [2] and [3]. As such, nothing set out in the Notice of Motion or written submissions can be considered as viable ground of appeal to the Court of Final Appeal.

11.  In any event, taking his case at its highest, his allegations are 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 13 June 2022 is dismissed.