RE AHMED MASOOD

CAMP 262/2021

[2022] HKCA 1576

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 262 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2413 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court)  :

1.  On 10 February 2022, this Court handed down decision ([2022] HKCA 212)  dismissing the applicant’s renewed application to extend time to appeal an order of Deputy High Court Judge K W Lung given on 22 July 2020 refusing his application for leave to apply for judicial review in respect of his non-refoulement claim.

2.  On 23 May 2022, the applicant filed a notice of motion and affirmation applying for leave to appeal this Court’s order to the Court of Final Appeal out of time.  The applicant has lodged written submission in time.

3.  Having considered the applicant’s documents, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have, therefore, proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our decision.  We will not repeat them.

5.  Section 24(2)  of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’)  (Cap. 484)  provides that 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 extend the time for the filing of the notice of motion.

6.  The applicant’s present application is out of time by over two months.  The applicant did not explain his delay in the supporting affirmation but simply said that the notice of motion was out of time.

7.  As to the merit of the intended appeal, section 22(1)(b)  of the HKCFAO provides that leave to appeal to the Court of Final Appeal may be granted 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.

8.  The notice of motion stated :

‘ THE HIGH COURT AND THE COURT OF APPEAL DISMISSED MY LEAVE TO APPLY FOR JUDICIAL REVIEW BUT I WISH THE COURT OF FINAL APPEAL WILL CONSIDER MY LEAVE TO APPLY FOR JUDICIAL REVIEW’

9.  In the applicant’s written submissions, the applicant stated that he was sick and was not available for hearing.  He stated that the Court deprived him of a chance to say anything. He stated that he needed documents from his home country and hospitals in Hong Kong.  He stated that he had knee problem due to diabetes and he was afraid to go out.  He was illiterate and he needed time to prepare documents.

10.  We are of the view that the grounds and arguments put forward by the applicant do not constitute viable grounds for giving leave to appeal.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b)  of the HKCFAO.

11.  Nor do we see any basis for leave under the ‘or otherwise’ limb under section 22(1)(b).

12.  As the statutory requirements for giving leave to appeal are not met, the intended appeal has no merit and there is no basis for us to extend the time for the filing of the notice of motion.  Accordingly, we dismiss the notice of motion.