RE AAMIR NADEEM

CAMP 85/2020

[2021] HKCA 1119

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 85 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 1453 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 15 April 2021 ([2021] HKCA 420), this Court (Yeung VP and Chu JA)  refused to grant an extension of time to the applicant to apply for leave to appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”)  given on 2 July 2019 in HCAL 1453/2018 refusing to grant him leave to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”)  given on 6 July 2018 dismissing his petition/appeal from the decision of the Director of Immigration (“the Director”)  given on 22 May 2017 rejecting his non-refoulement claim.

2.  By a notice of motion dated 28 May 2021, the applicant filed a notice of motion for leave to appeal this court’s judgment to the Court of Final Appeal (“CFA”).  However, it was out of time, as section 24(2)  of the Hong Kong Court of Final Appeal Ordinance (Cap. 484)  (“HKCFAO”)  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 and the deadline for filing the notice of motion fell on 13 May 2021.

3.  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.

4.  In the present case, the applicant delayed for 2 weeks and the delay cannot be regarded as insignificant.  The applicant explained in his supporting affirmation dated 28 May 2021 that “he had no idea about the date of the appeal”.  It is not a good reason for the delay.

5.  More importantly, the applicant has not shown any or any sufficient merits in his intended application for leave to appeal to the Court of Final Appeal. 

6.  In the notice of motion, the applicant provided the following grounds:

“1. I would like to apply for notice of motion because the court of 1^st instance gave me unfair decision, they didn’t note the error in the decision of TCAB and NOD. They make decision on the basis of other applicant.

2. I was submit late notice of appeal for lack of knowledge.  I don’t have any legal adviser.  After my torture claims they did not provide me any legal adviser even I requested for once.  The detail of grounds will be provided at a late date.”

7.  In compliance with the directions made by the Registrar of Civil Appeals on 1 June 2021, the applicant lodged his written submissions on 4 June 2021.   In his written submissions, he quoted some cases and contended that “high standards of fairness” applied to the determination of a non-refoulement claim.  He complained that the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  Lastly, he referred to section 37ZT of the Immigration Ordinance (Cap. 115)  which is about the late filing of notice of appeal to the Board. However, he did not explain and elaborate how the aforesaid cases and legal provisions were related to or would assist his case.

8.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

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.  The applicant failed to pinpoint any error or raised any discernible grounds of appeal to reverse our judgment and none of the matters raised in the notice of motion and the written submissions can be construed as valid ground of appeal to the Court of Final Appeal.  His complaint on the lack of legal assistance was canvassed and duly rejected by the Judge at [17] of Form CALL-1[1] and we see no merit in this argument. Accordingly, the applicant’s intended appeal is unarguable and bound to fail.

11.  For the reasons that we gave in our judgment of 15 April 2021, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion and the written submissions involves an arguable point or a question of great general or public importance.  We 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 not met.

12.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal out of time and dismiss his notice of motion.