RE MOHOMED RASEEN MOHOMED FAIZAL

CACV 280/2021

[2022] HKCA 1608

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 280 OF 2021

(ON APPEAL FROM HCAL NO. 2689 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 handed down the judgment ([2022] HKCA 210) dismissing the applicant’s application to appeal an order of Deputy High Court Judge K W Lung given on 17 May 2021 who refused his application for leave to apply for judicial review in respect of his non‑refoulement claim.

2.  On 25 April 2022, the applicant filed a notice of motion together with a supporting affirmation applying for leave to appeal out of time against this Court’s judgment to the Court of Final Appeal.  The applicant did not lodge any written submission despite the directions given by the Registrar of Civil Appeals.  

3.  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.  Therefore, we shall proceed 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 at [3] in our judgment.  We shall not repeat them here.

5.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’) (Cap. 484), 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, if it considers appropriate, extend the time for making application for leave to appeal. 

6.  Good grounds have to be shown by the applicant for the Court to grant an extension of time.  The relevant factors in considering whether extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at [1.4]).

7.  Section 22(1)(b) of the HKCFAO further 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.  We note that the Court registry was temporarily closed due to the COVID-19 pandemic during the general adjournment period between 7 March 2022 and 11 April 2022. The Court registry has resumed operation since 12 April 2022 

9.  Therefore, in accordance with section 71(1A)(a) of the Interpretation and General Clauses Ordinance (Cap. 1), the deadline for the applicant to file his notice of motion should fall on 12 April 2022 when the Court registry was reopened

10.  The applicant was late for over a week and in his affirmation, he simply annexed our order dated 10 February 2022 without any explanation for the delay.  Therefore, there is no ground for the Court to grant an extension of time for him to file the notice of motion. The applicant’s notion of motion is also devoid of merits as it simply states that he cannot return home as his life is in danger in Sri Lanki and therefore wishes to appeal to the Court of Final Appeal. 

9.  In the circumstances, the applicant failed to provide any 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.

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

14.  As the statutory requirements for giving leave to appeal are not met, the intended appeal is devoid of merits and we dismiss the notice of motion dated 25 April 2022 accordingly.