RE ISLAM ZOHURUL

CAMP 251/2021

[2022] HKCA 76

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 251 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2173 OF 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  On 25 October 2021, this Court handed down our judgment[1] refusing to give leave to the applicant to appeal out of time against the decision of Deputy High Court Judge Bruno Chan given on 15 September 2020 refusing him leave to apply for judicial review.     

2.  On 20 December 2021, the applicant filed a notice of motion and an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  He also lodged a written submission to support his application.

3.  Having considered the notice of motion, affirmation and written submission, 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.  We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that 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.  Under section 24(5), the Court of Appeal may extend the time for the filing of the notice of motion.

5.  The applicant’s application is late by four weeks.  He apologised in his affirmation for the delay, but did not provide any explanation for it.        

6.  We turn next to consider the merits of the application.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

7.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, 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.  Other than stating that the applicant wants to go to the Court of Final Appeal, the notice of motion did not set out any ground to support the application.  In the written submission, the applicant stated that he disagreed with the decisions of the Director of Immigration and the Torture Claims Appeal Board, but the Court of First Instance dismissed his application for leave to apply for judicial review and the Court of Appeal also did not give him a favourable judgment.  The applicant said he had no way but to go to the Court of Final Appeal to state all his complaints and he hoped he would get a good result that would help all the non-refoulement claimants.         

9.  We are of the view that the applicant has failed to put forward any viable grounds for granting leave to appeal to the Court of Final Appeal.  Importantly, it is not shown that his intended appeal involves any question of great general or public importance, as required by section 22(1)(b).  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

10.  As the statutory requirements for giving leave to appeal are not met, the application for leave to appeal is bound to fail.  In the circumstances, it is futile to extend the time for making the application.  Accordingly, we refuse to extend the time for applying for leave to appeal to the Court of Final Appeal and dismiss the notice of motion.