RE KN

CACV 21/2021

[2022] HKCA 766

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 21 OF 2021

(ON APPEAL FROM HCAL NO 1711 OF 2019)

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J U D G M E N T

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Hon K Yeung J (giving the Judgment of the Court):

1.  On 17 August 2021, this court (Barma JA and K Yeung J)  handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge P Li given on 13 January 2021 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (the “Board”)  dismissing the applicant’s appeal against the decision of the Director of Immigration (the “Director”)  rejecting his non-refoulement claim.

2.  The facts and issues in the application, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion filed out of time on 18 October 2021, for leave to appeal to the Court of Final Appeal.  The applicant has failed in the Notice of Motion to state any ground of appeal against the decision of this court, but has simply said, after stating that this court has dismissed his appeal, that:

“Now I want to go to the Court of Final Appeal.”

4.  In the affirmation filed on 18 October 2021, the applicant only deposes that:

“I am sorry to failed [sic] to submit my application in time.”

5.  The applicant has failed to comply with Practice Direction 2.1 and has failed to lodge any written submissions.

6.  Having considered the applicant’s Notice of Motion and affirmation, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

7.  The applicant has failed to proffer any explanation as to how he eventually came to know about the judgment, or why his application for leave was made out of time.  We are therefore of the view that the applicant has failed to provide a reasonable explanation for the delay.

8.  In any event, the applicant has failed to advance any ground for granting leave to appeal to the Court of Final Appeal, not to mention any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised.

9.  None of the matters stated in the Notice of Motion are in our view reasonably arguable before the Court of Final Appeal. We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

10.  For these reasons, the Notice of Motion filed on 18 October 2021 is dismissed.