RE PATEL SAMIR GULAB

CAMP 122/2021

[2022] HKCA 1016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 122 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1864 OF 2018)

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J U D G M E N T

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

1.  On 24 May 2022, the applicant filed a Notice of Motion together with a supporting affirmation to apply for leave to appeal to the Court of Final Appeal out of time against this Court’s (Chu and Au JJA)  judgment of 10 January 2022 (“the Judgment”)  ([2022] HKCA 12). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 24 June 2020, refusing his application for leave to apply for judicial review (“the Leave Decision”)  ([2020] HKCFI 1284).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal if 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.

4.  Pursuant to section 24(2)  of the HKCFAO, an appellant has 28 days from the date of the Judgment to seek leave to appeal to the Court of Final Appeal.  In the present case, the deadline for the applicant to seek leave to appeal against the Judgment fell on 7 February 2022.  Accordingly, the applicant was over 3.5 months late in taking out his application for leave to appeal to the Court of Final Appeal.

5.  As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the Court has a discretion to extend time under section 24(5)  of the HKCFAO only if good and sufficient grounds are shown by the applicant: see Re Imran Muhammad [2021] HKCA 482 at [9] and the authorities cited therein.  In deciding whether there are such good grounds, the Court is entitled to take into account (a)  the length of the delay; (b)  the reasons for the delay; (c)  the chances of the appeal succeeding if an extension of time is granted; and (d)  the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another [2021] HKCA 83 at [4] and the authorities cited therein.

6.  In his Notice of Motion, the applicant stated:

“I would like to inform to Court of Final Appeal. The Immigration Department had unlawfully fettered his discretion by refusing my claim on the grounds that they did not satisfy the requirement. The Adjudicator acted in a procedurally unfair manner in dealing with my appeal.” (sic)

7.  In his supporting affirmation, the applicant stated:

“Affirmation for leave to apply for my Notice of Motion time extension against the Order of High Court on 10-Jan-2022. Seeking time extension I did not aware of my deadline to lodge my Notice of Motion.” (sic)

8.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 6 June 2022.  In those submissions, he complained that he was not provided with language assistance in relation to his BOR2 assessment and that the non-refoulement claim process lacked sound judgment and fairness throughout. It is noted that these allegations are vague and general and the applicant failed to provide specific particulars in support of his contentions.

9.  At the outset, the applicant’s delay of over 3.5 months was very substantial and he failed to provide any good reason or evidence in support for his delay.  Mere ignorance of the deadline as asserted is not a good reason for the delay.

10.  More importantly, the matters raised in his Notice of Motion and written submissions are all vague and bare allegations without specific particulars or evidence in support.  Moreover, all his accusations are directed at the Torture Claims Appeal Board / Non-refoulement Claims Petition Office and the Director of Immigration and did not identify any error in the Judgment.  As such, they simply do not constitute viable grounds of appeal and his intended appeal must fail on this basis alone.

11.  As to his contention regarding the lack of language assistance, we have already considered and rejected the same at [22] of the Judgment.  The applicant did not identify any error in the Judgment.  It is well established that the Court of Appeal will not allow an application of this nature to be deployed as an occasion for re-running the arguments which had already been canvassed at the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014)  at [2] and [3]. 

12.  In any event, the applicant’s contentions are fact-specific and do not relate to any question of great general or public importance.

13.  Accordingly, he failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

14.  For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant him extension of time to pursue a hopeless appeal.  Accordingly, the Notice of Motion filed on 24 May 2022 is dismissed.