RE KHYBAR

CAMP 120/2021

[2022] HKCA 1284

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 120 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 2154 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 15 November 2021, this court (Chu JA and Barma JA) handed down a judgment dismissing the applicant’s application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 15 September 2020 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision 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 22 December 2021, for leave to appeal to the Court of Final Appeal.  In the Notice of Motion, the applicant merely stated that he wished “to go to the Court of Final Appeal”.  In the affirmation filed on 22 December 2021, the applicant simply acknowledged that he had lodged the Notice of Motion out of time.

4.  In his written submissions lodged on 5 January 2022, the applicant repeated the dangers he may face if he was refouled to Pakistan, and restated his disagreement with the decisions below.

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 failed to explain how and when he eventually came to know about the judgment of this court.  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.  None of the matters stated in the Notice of Motion are therefore 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).

9.  For these reasons, the Notice of Motion filed on 22 December 2021 is dismissed.