RE DIGGS BENJAMIN W alias BENJAMIN DIGGS

CAMP 201/2021

[2022] HKCA 1693

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 201 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 969 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 (Cheung and Yuen JJA) handed down a decision ([2022] HKCA 207]) dismissing the applicant’s renewed application to extend time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 5 March 2021 refusing his application for leave to apply for judicial review in respect of his non‑refoulement claim (‘Decision’).

2.  On 16 May 2022, the applicant filed a notice of motion and affidavit applying for leave to appeal this Court’s order to the Court of Final Appeal out of time.  The applicant has lodged a written submission.

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 two and a half months.  The applicant in his affidavit states that he was not aware of a deadline to lodge his notice of motion and therefore seeks leave to appeal.

7.  We are of the view that this is a serious delay.  However, the more important consideration in deciding whether to extend time is the prospect of the applicant’s intended application for leave to appeal to the Court of Final Appeal.

8.  As to the merit of the intended appeal, section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.

9.  The notice of motion states :

‘ I would like to inform Court of Final Appeal I am disagree with the decision of authorities there are some error in decision maker authorities Director of Immigration. As well as the decision made by the Torture Claim Appeal Board. I do not think my case have been fairly determined. It’s towards my life still in danger in my home land.’

10.  The applicant in his written submissions repeats his submissions regarding procedural unfairness, pursued both at his leave to apply for judicial review and in his renewed application to extend time to appeal.  As pointed out in [13] to [16] of our Decision, there is no basis upon which Deputy High Court Judge Bruno Chan’s decision could be disturbed by the Court of Appeal.

11.  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.

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

13.  In the circumstances, the intended application for leave to appeal to the Court of Final Appeal has no prospect of success.  This being the case, it would be futile to extend the time for making the application.  Accordingly, we refuse to extend the time and dismiss the Notice of Motion.