RE JOSEPH JEROME

CAMP 83/2021

[2022] HKCA 1437

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 83 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 853 OF 2018)

__________________________

__________________________

________________________

J U D G M E N T

________________________

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

1.  This court handed down judgment on 25 February 2022 ([2022] HKCA 275) dismissing the applicant’s application to extend time to appeal against an order of DHCJ Bruno Chan given on 5 August 2020 in which he refused an extension of time for, and dismissed, the application of the applicant for leave for judicial review in respect of his non‑refoulement claim.

2.  The facts and issues in the application before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

3.  On 19 April 2022, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal. However, it was out of time, as s.24(2) of Hong Kong Court of Final Appeal Ordinance (“HKCFAO”) 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 last day for filing the Notice of Motion expired on 25 March 2022. However, that fell during the High Court’s pandemic general adjournment period, which terminated on 11 April 2022. He should therefore have filed the Notice of Motion the following day, 12 April 2022.

4.  However, under s.24(5) and s.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.

5.  In the present case, the applicant was late by a week. He explained in his supporting affirmation that he was not aware of the time limit for filing the Notice of Motion, and the High Court Registry was closed due to the Covid-19 pandemic. However, he failed to explain why he took about a week to file the same after the High Court Registry was reopened on 12 April 2022.

6.  In any event, the applicant has not shown any merits in his intended application for leave to appeal to the Court of Final Appeal. He said the following in the Notice of Motion:

“I would like to inform to Court of Final Appeal. There are some error in my decision maker. I am disagree with the decision made by the Director of Immigration as well as the Torture Claims Appeal Board. I do not think my case has been determined fairly. Its towards to my life still be danger in my country origin.”

7.  In compliance with the directions of the Registrar of Civil Appeals made on 19 April 2022, the applicant lodged his written submissions in support of the Notice of Motion on 29 April 2022. This Notice of Motion is determined on paper without an oral hearing, which we consider appropriate.

8.  In his written submissions, he advanced the following grounds:

(1)  There was a lack of legal representation for BOR 2 risk assessment.

(2)  The Director’s Notice of Further Decision did not ensure the he was aware of his rights for his claim under BOR 2 risk. He did not understand the process and the reason for the said decision.

(3)  He disagreed with the Director’s and the Board’s decisions.

(4)  He urged this Court to take into account the procedural unfairness throughout the case and the policy of trying to dispose of the non-refoulement claims as quickly as possible.

(5)  The Director and the Board had unlawfully fettered their discretion to refuse his claim, and their decisions were unreasonable or irrational or a result of procedural errors or unfairness.

(6)  The authorities had acted in a discriminatory manner which is unacceptable and detrimental to the spirit of the judicial system.

9.  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.

10.  The applicant’s intended appeal did not engage with our judgment. It failed to advance any grounds to pinpoint any error in our judgment. He only stated general complaints against the decisions made by the Director and the Board. No question of great general or public importance has been identified as required by s.22(1)(b) of the HKCFAO.

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

12.  By reason of the above, the Notice of Motion filed on 19 April 2022 is dismissed.