RE ODTUJAN DERBE CRIS VICTORIA

CAMP 544/2021

[2022] HKCA 893

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 544 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 2426 OF 2018)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  On 25 February 2022, this court (Barma JA and Au JA)  handed down a judgment dismissing the applicant’s application for extension of time to appeal against the decision of DHCJ KW Lung dated 22 July 2020 refusing to grant leave to the applicant to apply for judicial review. The applicant had sought to review the decisions of the Torture Claims Appeal Board, which dismissed his appeal against the decisions of the Director of Immigration.

2.  The facts and issues in the application, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion filed out of time on 12 April 2022, for leave to appeal to the Court of Final Appeal.  The applicant stated in the supporting affirmation that he did not receive the court’s judgment in time, without proffering any explanation.

4.  In his written submissions lodged on 26 April 2022, the applicant referred to the well-established principles in ST v Director of Immigration (sic)[2] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.

5.  Having considered the applicant’s Notice of Motion, affirmation and written submissions, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

6.  The applicant claimed that he did not receive the court’s judgment in time but he did not explain why that was the case.  He also did not explain when and how he eventually came to know about the judgment.  We are therefore of the view that the applicant has failed to provide a reasonable explanation for the delay.

7.  In any event, the matters advanced by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal. The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised.

8.  Further, there was no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in his written submissions had not been applied in the consideration of his appeal by this court or in the processing of his non-refoulement claim.

9.  None of the matters stated in the Notice of Motion are in our view reasonably arguable before the Court of Final Appeal. We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

10.  For these reasons, the Notice of Motion filed on 12 April 2022 is dismissed.