MANE HAMIROU v. DIRECTOR OF IMMIGRATION AND ANOTHER

CAMP 27/2021

[2022] HKCA 558

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 27 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 294 OF 2018)

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J U D G M E N T

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

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Au JA) handed down on 6 September 2021 ([2021] HKCA 1259). The Court of Appeal dismissed the applicant’s summons for extension of time to appeal against decision of Deputy High Court Judge Bruno Chan on 11 January 2019 ([2019] HKCFI 124) refusing to grant leave to apply for judicial review concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 22 December 2021 that the applicant shall lodge written submissions on or before 5 January 2022. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. The applicant did not lodge any written submissions by the deadline. Having considered the papers of this case, we think it appropriate to determine this application on paper.

3.  The applicant is a national of Guinea. He arrived in Hong Kong on 30 November 2014 as a visitor and subsequently overstayed. He surrendered to the Immigration Department and lodged a non-refoulement claim on 16 January 2015 on the basis that if he returns to Guinea he will be harmed or killed by the Guinean authority including the army that have already killed his father.

4.  He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. His application was late for more than 16 months. It was refused by the judge on 7 January 2021[1].

5.  The applicant renewed his application to the Court of Appeal for extension of time to appeal on 25 January 2021. The application was dismissed by the Court of Appeal on 6 September 2021 as the applicant failed to show any prospect of success in his intended appeal.

Grounds of appeal

6.  In the Notice of Motion filed on 22 December 2021, the applicant stated that he is challenging the decision because his life is in danger in his country and the Court should have considered the safety of his life.

Analysis and disposition

7.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484, “the Ordinance”), 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, if it considers appropriate, extend the time for making application for leave to appeal.

8.  Good grounds have to be shown by the applicant for the court to grant an extension of time. The relevant factors in considering whether extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

9.  Section 22(1)(b) of the Ordinance 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.  The applicant was late for more than 11 weeks in taking out the present application and did not provide any explanation for his substantial delay. We refuse to grant an extension of time for him to apply for leave to appeal to the Court of Final Appeal.

11.  In any event, the applicant has not put forward any reasonably arguable ground to show that the Court of Appeal was wrong in dismissing his application and he failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

12.  For the above reasons, we dismiss the Notice of Motion filed on 22 December 2021 for leave to appeal to the Court of Final Appeal.