RE SARWAR SHAHBAZ

CAMP 221/2021

[2022] HKCA 91

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 221 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2372 OF 2018)

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J U D G M E N T

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Hon Chu JA giving the Judgment of the Court:

1.  On 19 October 2021, this Court handed down our judgment[1] refusing to give leave to the applicant to appeal out of time against the decision of Deputy High Court Judge To given on 28 April 2021 refusing him leave to apply for judicial review.    

2.  On 17 December 2021, the applicant filed a notice of motion and an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  He also lodged a written submission to support his application.

3.  Having considered the notice of motion, affirmation and written submission, 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.  Section 24(2)  of the Hong Kong Court of Final Appeal Ordinance, 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.  Under section 24(5), the Court of Appeal may extend the time for the filing of the notice of motion.

5.  The applicant’s application is late by about four weeks.  While he apologised for his delay in the affirmation, he did not provide any explanation for it.  

6.  We turn next to consider the merits of the application.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

7.  Under section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, 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 applicant stated in the notice of motion that he wants to go to the Court of Final Appeal as his judicial review application was refused and the Court of Appeal also dismissed his application.  In the written submission, he further stated that his life has since 2009 been under threat in Pakistan, and that as his claim was rejected by the Director of Immigration and the Torture Claims Appeal Board, and his applications to the Court were dismissed, he fears his life is fast coming to an end.  He asked for an opportunity to make submissions to the Court of Final Appeal so that he would get a good decision that could benefit him and all non-refoulement claimants.

9.  We are of the view that there is no proper basis to grant leave to appeal.  Importantly, it has not been shown that the intended appeal involves a question of great general or public importance, as required by section 22(1)(b).  Further, for the reasons we gave in our judgment, the intended appeal has no merits.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

10.  As the statutory requirements for giving leave to appeal are not met, the application for leave to appeal is bound to fail.  In the circumstances, it is futile to extend the time for making the application.  Accordingly, we refuse to extend the time for applying for leave to appeal to the Court of Final Appeal and dismiss the notice of motion.