RE MD ABU HENA

CAMP 183/2021

[2022] HKCA 938

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 183 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 598 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court)  :

1.  On 25 October 2021, this Court handed down the decision ([2021] HKCA 1573)  dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge Bruno Chan given on 11 August 2020 who refused his application for extension of time for leave to apply for judicial review in respect of his non-refoulement claim.

2.  On 21 December 2021, the applicant filed a notice of motion and affirmation applying for leave to appeal this Court’s judgment to the Court of Final Appeal out of time.  The applicant has not lodged any written submission.

3.  Having considered the applicant’s notice of motion, and affirmation, 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.  Section 24(2)  of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’)  (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.  Section 24(5)  further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

6.  The applicant’s present application is out of time by about one month.  The applicant did not explain in the supporting affirmation his delay, but simply said that the notice of motion was out of time and it was important for him.

7.  As to the merit of the intended appeal, section 22(1)(b)  of the HKCFAO 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.

8.  The notice of motion stated :

‘ The Director of Immigration rejected my non-refoulement claim. The adjudicator of Torture Claims Appeal Board too rejected my claim. The High Court and the Court of Appeal dismissed my leave to apply for judicial review. I want to go to the Court of Final Appeal.’

9.  The applicant’s affirmation stated that ‘It is important for me.  Please accept my application.’ 

10.  We are of the view that the grounds and arguments put forward by the applicant 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 HKCFAO.

11.  Nor do we see any basis for the ‘or otherwise’ limb under section 22(1)(b).

12.  As the statutory requirements for giving leave to appeal are not met, the intended appeal has no merit and there is no basis for us to extend the time for the filing of the notice of motion. Accordingly, we dismiss the notice of motion.