RE RAZA WALEED

CAMP 213/2019

[2021] HKCA 1116

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 213 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 170 OF 2018)

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J U D G M E N T

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

1.  By a judgment dated 11 June 2020 ([2020] HKCA 409), this Court (Yeung VP and Pang JA)  refused to grant an extension of time to the applicant to apply for leave to appeal against the decision of Campbell-Moffat J (“the Judge”)  given on 30 April 2019 in HCAL 170/2018 refusing to grant leave to the applicant to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”)  given on 23 January 2018 dismissing his petition/appeal from the decisions of the Director of Immigration (“the Director”)  given on 14 July 2016 and 22 March 2017 rejecting his non-refoulement claim.

2.  On 15 April 2021, the applicant filed a notice of motion for leave to appeal this court’s judgment to the Court of Final Appeal (“CFA”).  However, it was out of time, as section 24(2)  of the Hong Kong Court of Final Appeal Ordinance (Cap. 484)  (“HKCFAO”)  stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from and the deadline for filing the notice of motion fell on 9 July 2020.

3.  Under section 24(6)  of the HKCFAO, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period.  In the exercise of our discretion whether or not to extend the appeal period, we should consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party.

4.  In the present case, the applicant delayed for more than 9 months.  The delay is substantial.  The applicant explained in his supporting affirmation dated 14 April 2021 that he has been detained by the Immigration Department and he did not receive any court letter and our judgment.  It is upon the applicant to provide the court with an updated address and we did not see any reason why the applicant could not do the same when he was detained by the Immigration Department. 

5.  More importantly, the applicant has not shown any or any sufficient merits in his intended application for leave to appeal to the Court of Final Appeal. 

6.  In the notice of motion, the applicant provides the following grounds:

“1. The Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration refusing my application for judicial review.

2. There is some error in law in my decision. The decision maker just relied on COL information any my pervious facts, which were favour on rejecting my claim.

3. Actual life occur different situation then mentioned COL information. Officer and courts prefers to ignore the overwhelming of the evidence of violence towards minorities searching for unrealistic silver lining.

4. The Judge did not apply the law properly.”

7.  Pursuant to the directions made by the Registrar of Civil Appeals on 19 April 2021, the applicant should lodge his written submissions on or before 29 April 2021.  However, the applicant delayed for almost one month and only lodged his written submissions on 24 May 2021.

8.  In the applicant’s written submissions, he quoted passages from ST v Director of Immigration[1] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  He further submitted that “high standards of fairness” applied to the determination of a non-refoulement claim and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  Lastly, he referred to section 37ZT of the Immigration Ordinance (Cap. 115)  which is about the late filing of notice of appeal to the Board. However, he did not explain nor elaborate how the aforesaid cases and legal provisions were related or assisted his case.

9.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

10.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance (Cap. 484)  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.

11.  The applicant failed to pinpoint any error or raise any discernible grounds of appeal to reverse our judgment and none of the matters raised in the notice of motion and the written submissions can be construed as valid ground of appeal to the Court of Final Appeal.  Accordingly, the applicant’s intended appeal is unarguable and bound to fail.

12.  For the reasons that we gave in our judgment of 11 June 2021, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion and the written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b)  either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

13.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal out of time and dismiss his notice of motion.