RE MEHMOOD SAJID

CAMP 156/2019

[2022] HKCA 1245

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 156 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 279 OF 2017)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  On 6 January 2021, this court (Barma JA and Au JA)  handed down a judgment dismissing the application for extension of time to appeal against the decision of D’Almada Remedios J (“the Judge”)  given on 30 January 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board, which dismissed his appeal against the decision of the Director of Immigration.

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 8 November 2021, for leave to appeal to the Court of Final Appeal.  In the Notice of Motion, the applicant merely repeated his complaints against the Judge, including that the Judge “did not apply the law properly”.

4.  In the affirmation filed on 8 November 2021, the applicant deposed:

“I am presently detained by the ImmD authorities. Leave be granted to me to file Notice of Motion out of time as I did not receive any judgment from the High Court regarding the summons be dismissed.”

5.  In his written submissions, lodged out of time on 20 January 2022, the applicant referred to the well-established principles in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.

6.  Having considered the applicant’s Notice of Motion, affirmation and written submissions, 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 failed to state when he eventually came to know about the judgment of this court.  We are therefore of the view that the applicant has failed to provide a reasonable explanation for the substantial delay of over 9 months.

8.  In any event, the matters advanced by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal. The applicant has failed to identify 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.  Further, there was no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in his written submissions had not been applied in the consideration of his appeal by this court or in the processing of his non-refoulement claim.

10.  None of the matters stated in the Notice of Motion are therefore 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).

11.  For these reasons, the Notice of Motion filed on 8 November 2021 is dismissed.