RE SAID UMAIR

CAMP 44/2017

[2018] HKCA 416

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 44 OF 2017

(ON AN INTENDED APPEAL FROM HCAL NO 286 OF 2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  On 8 February 2018, the Court (Lam VP and Au J) handed down judgment refusing to grant extension of time to the applicant to appeal against the decision of Deputy High Court Judge Woodcock on 29 September 2017. The principal reasons for refusing extension were our finding that the applicant did not have a satisfactory explanation for the delay and our conclusion that the intended appeal had no merit.

2.  On 23 May 2018, the applicant issued a Notice of Motion out of time to seek leave to appeal to the Court of Final Appeal. As submitted on behalf of the Director of Immigration as the 2^nd Interested Party, the time for making the application was 28 days from date of judgment, viz time expired on 8 March 2018.  The applicant did not apply for any extension of time and did not give any explanation for the delay notwithstanding the submission of the Director.  This reason alone is sufficient for the dismissal of the notice of motion.   

3.  In any event, the applicant fails to satisfy the criteria for leave to be granted.

4.  The relevant criteria for granting leave to appeal to the Court of Final Appeal are set out in Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance Cap 484:

“ 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.”

5.  Having read the documents, we cannot find any basis for holding that leave to appeal should be granted pursuant to Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.  The applicant has not raised any question of great general or public importance in the intended appeal.  The refusal to accept his explanation for delay is case specific, we simply disbelieve his bare assertion that he did not receive the judgment below earlier than he said.  As regards the merit of intended judicial review, the court was well aware of the services of the Duty Lawyer Scheme being not automatically given to an applicant at the appeal stage.  As observed by the judge below, the present case did not cover the assessment on BOR 2 risk.  The applicant’s reference to the same as a ground for appeal is misconceived.   

6.  Nor is there any reason for leave to be granted on the “otherwise” limb.

7.  The Notice of Motion of 23 May 2018 is dismissed.