RE HUSSAIN MUHAMMAD ASIF

CAMP 175/2018

[2022] HKCA 579

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 175 OF 2018

(ON AN INTENDED APPEAL FROM HCAL 720 OF 2017)

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J U D G M E N T

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

1.  On 10 April 2019, this court (Chu and Barma JJA) handed down a judgment dismissing the applicant’s application for extension of time to appeal against the decision of DHCJ Josiah Lam given on 29 May 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board, which dismissed his appeal against the decisions of the Director of Immigration.

2.  The facts and issues in the application, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion filed out of time on 3 September 2021, for leave to appeal to the Court of Final Appeal. The applicant stated in the Notice of Motion that “there are questions of great general or public importance”, without setting out the alleged questions. He also contended that he was not given language assistance in the proceedings below and that he was unrepresented.

4.  In the affirmation filed on 3 September 2021, the applicant deposed:

“I did not know about the decision and I did not know there is a time limit, so I was totally unaware of the decision.”

5.  In the applicant’s written submissions lodged on 17 September 2021, he repeated the matters stated in his Notice of Motion.

6.  Having considered the applicant’s Notice of Motion, affirmation and written submissions, we see no reason to depart from the usual practice of determining an application of this kind on the papers. We have, therefore, determined the applicant’s application on the basis of the documents filed.

7.  The applicant claimed that he did not “know about the decision” (presumably he meant this court’s judgment) but he did not explain why that was the case. He also did not explain how he eventually came to know about the judgment. We are therefore of the view that the applicant has failed to provide a reasonable explanation for the delay, which is clearly substantial.

8.  The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal. The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484. Nor is any such question apparent to us from the matters he has raised.

9.  None of the matters stated in the Notice of Motion are in our view reasonably arguable before the Court of Final Appeal. We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

10.  For these reasons, the Notice of Motion filed on 3 September 2021 is dismissed.