RE YAKUBU DANLAD

CAMP 277/2019

[2021] HKCA 529

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 277 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 82 OF 2018)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.  By a judgment dated 11 September 2020 ([2020] HKCA 742) (“the Judgment”), this Court (Yeung VP and Pang JA) dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge Bruno Chan (“the Judge”) given on 17 June 2019 in HCAL 82/2018 refusing to give the applicant leave to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office (“Board”) given on 5 January 2018 dismissing his petition/appeal from the decisions of the Director of Immigration (“Director”) given on 10 June 2015 and 12 June 2017 rejecting his non-refoulement claim.

2.  On 26 January 2021, the applicant filed a notice of motion for leave to appeal this court’s judgment to the Court of Final Appeal. 

3.  Having considered the notice of motion, we are of the view that it is appropriate to deal with the application on paper without an oral hearing.

4.  The applicant’s notice of motion was filed 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 10 October 2020. 

5.  However, under section 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, see: Re Rajaram Razeena [2019] HKCA 959 at para 1.4.

6.  In the present case, the applicant’s notice of motion is late by 3.5 months and the delay is substantial.  The applicant explained in the notice of motion that he did not receive any letter from the Court.  We note from the court file that the court gave a copy of the Judgment to the applicant on 11 September 2020.  In the circumstances, we do not accept the applicant’s explanation as a good reason for his undue delay and we would not grant an extension of time to file the notice of motion.

7.  In any event, the applicant has not shown any or any sufficient merits in his intended application for leave to appeal to the Court of Final Appeal.  In the notice of motion, he did not provide any meaningful ground of appeal save for saying that “…I am still facing challenges due to circumstances surrounding it and a number attempts, I am urging the court to reconsider my application...” 

8.  Pursuant to the directions made by the Registrar of Civil Appeals on 11 February 2021, the applicant should lodge his written submissions on or before 4 March 2021.  However, he failed to do so.

9.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.  Here, the applicant failed to raise any discernible grounds to disturb the Judgment and nothing set out in the notice of motion can be constituted as viable ground of appeal. 

11.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is therefore not met.

12.  As we refuse to extend the time for the applicant to apply for leave to appeal to the Court of Final Appeal, we dismiss his notice of motion.