RE IHSAN UL HAQ

CAMP 351/2021

[2022] HKCA 912

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 351 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1563 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 25 May 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal out of time against this Court’s (Barma and Au JJA)  judgment of 4 March 2022 (“the Judgment”)  ([2022] HKCA 343). 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 15 January 2020, by which the Deputy Judge refused his application for leave to apply for judicial review ([2020] HKCFI 192).

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.  Further, pursuant to section 24(2)  of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for filing the present application expired on 1 April 2022.  The applicant was therefore late for almost two months 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:

“THE DIRECTOR OF IMMIGRATION AND TORTURE CLAIMS APPEAL BOARD REJECTED MY CLAIM FOR NON REFOULEMENT. THE HIGH COURT AND THE COURT OF APPEA DISMISSED MY LEAVE TO APPLY FOR JUDICIAL REVIEW. PLEASE GIVE ME PERMISSION TO GO TO THE COURT OF FINAL APPEAL.” (sic)

7.  In his supporting affirmation filed on 25 May 2022, the applicant stated:

“AFFIRMATION FOR APPLY OF NOTICE OF MOTION BUT OUT OF TIME. PLEASE ACCEPT. PLEASE ACCEPT.” (sic)

8.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 8 June 2022.  In those submissions, he repeated the factual background of his non-refoulement claim.  He also claimed that he did not receive the letter from the Court and that it was his right to appeal but the High Court did not give him the chance to appeal.

9.  At the outset, a delay of almost two months is substantial.  Although the applicant claimed that he did not receive the letter from the Court, he provided no evidence or particulars in support of his contention. According to the Court record, the Judgment and the sealed Court Order were sent by post on 7 March 2022 to the last known address of the applicant, which is the same address as provided in his Notice of Motion, without being returned undelivered.  Accordingly, there is no good reason for his delay.

10.  More importantly, his application wholly lacks substance.  He did not advance any grounds of appeal in his Notice of Motion or supporting affirmation.  Insofar as his written submissions are concerned, general assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  He also did not identify any error in the Judgment.  Clearly, there is no viable ground of appeal and this application must be dismissed on this basis alone.

11.  In any event, even taking his case at its highest, his allegations are fact-specific and do not relate to any question of great general or public importance.

12.  Accordingly, the applicant has 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.

13.  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 25 May 2022 is dismissed.