RE IQBAL AKHTAR

CAMP 393/2021

[2022] HKCA 822

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 393 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1385 OF 2018)

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J U D G M E N T

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Hon Chu JA (giving the Judgment of the Court):

1.  On 23 December 2021, this court handed down our judgment ([2021] HKCA 1955)  dismissing the applicant’s application to extend time to appeal the decision of Deputy High Court Judge Lung given on 31 March 2021 refusing his application for leave to apply for judicial review in respect of his non-refoulement claim.

2.  On 17 May 2022, the applicant filed a Notice of Motion together with an affirmation to apply for leave to appeal this court’s judgment to the Court of Final Appeal.  The applicant has also lodged a written submission on 25 May 2022.

3.  Having considered the applicant’s 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.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  The applicant’s Notice of Motion is out of time, as section 24(2)  of the Hong Kong Court of Final Appeal Ordinance Cap. 484 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.  The deadline for filing the Notice of Motion expired on 20 January 2022.

6.  Under sections 24(5)  and 24(6)  of the Hong Kong Court of Final Appeal Ordinance, 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 would 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. 

7.  In the present case, the applicant’s Notice of Motion is late by more than five months, which is a serious delay.  The applicant explained in his affirmation that the delay was due to the pandemic and the closure of the court.  We do not find the explanation satisfactory because by the time the court registry was closed due to the public health situation on 7 March 2022, the time for the applicant to apply for leave to appeal to the Court of Final Appeal had already expired.  

8.  As to the merits of the intended appeal, section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance 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.

9.  The Notice of Motion set out the following grounds in support of the application:

(1)  The applicant did not know that the failure to lodge written submission would cost him an oral hearing.  He had asked for a hearing.  He relied too much on the help of friends and NGOs as he has no knowledge about judicial review and could not get the translations from friends and NGOs.

(2)  There was procedural unfairness.  The applicant did not have knowledge about judicial review and had asked a friend to help to submit a written submission but it did not work.  He was refused legal aid.

(3)  There was no inconsistency in the applicant’s case, which was genuine and real.  The Director of Immigration and the Torture Claim Appeals Board, however, made their decisions on the basis of other applicant’s case.

(4)  Contrary to what was found by the Director and the Board, internal relocation is not possible for the applicant.    

10.  The written submission is almost identical to the written submission put in on 24 September 2021 in support of the renewed application for extension of time to appeal (see [18] of our judgment).

11.  We are of the view that the matters stated in the Notice of Motion and the written submission do not constitute 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 Ordinance.  Further, grounds (1)  and (2)  in the Notice of Motion is irrelevant because in the applicant’s case, it did not happen that an oral hearing was vacated due to lodge written submission.  As to the other points raised in the Notice of Appeal and the written submission, they are unarguable for the reasons we gave at [16] to [20] of our judgment.  

12.  Nor do we see any basis for the “or otherwise” limb under section 22(1)(b).

13.  As the statutory requirements for giving leave to appeal are not met, it would be futile to extend the time to apply for leave to appeal.  Accordingly, we refuse to extend the time for making the application and dismiss the Notice of Motion.