RE MOHAMMAD TAZUDDIN

CAMP 589/2021

[2022] HKCA 826

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 589 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1372 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 11 March 2022, this court handed down our judgment ([2022] HKCA 429)  dismissing the applicant’s application to extend the time to appeal the decision of Deputy High Court Judge Bruno Chan given on 5 July 2021 refusing his application for leave to apply for judicial review in respect of his non-refoulement claim.

2.  On 11 May 2022, the applicant filed a Notice of Motion together with an affirmation to apply for leave to appeal this court’s judgment to the Court of Final Appeal.  The applicant has also lodged a written submission on 25 May 2022.

3.  Having considered the applicant’s 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.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  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.  Section 24(5) of the Ordinance further provides that the Court of Appeal may extend the time for the filing of the notice of motion.  In considering whether to extend the time, we will have regard to (i) the length of the delay; (ii) the reasons for the delay; (iii) the merits of the intended application; and (iv) the prejudice to the other parties if time was extended.

6.  As a result of the closure of the High Court registry between 7 March and 11 April 2022 due to the public health situation, and by reason of section 71(1A)(a)  of the Interpretation and General Clauses Ordinance, Cap. 1, the time for the applicant to apply for leave to appeal against our judgment expired on 12 April 2022.  The applicant’s Notice of Motion is late by about one month, which is a significant delay.  He has provided no explanation for the delay.

7.  As to the merits of the intended appeal, section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance 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 and the affirmation stated that the Court erred in (i)  failing to consider the BOR 2 risk ground; (ii)  accepting the Board’s conclusion that the prosecution risk ground was not made out because the applicant faces no risk of harm; and (iii)  finding the decision of the Torture Claim Appeals Board to be without fault and not irrational.

9.  The written submission was identical to the written submission put in on 13 January 2022 to support the renewed application for extension of time to appeal (see paragraph 17 of our judgment).

10.  We are of the view that the matters stated in the written submission 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 Ordinance.  Further, for the reasons we gave in [18] and [19] of our judgment, the arguments advanced in the Notice of Motion and the written submission are unarguable.

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

12.  As the statutory requirements for giving leave to appeal are not met, it would be futile to extend the time to apply for leave to appeal.  Accordingly, we refuse to extend the time for making the application and dismiss the Notice of Motion.