RE JATINDER KUMAR

CAMP 149/2021

[2023] HKCA 236

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 149 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2404 OF 2018)

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J U D G M E N T

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

1.  This court handed down judgment on 18 March 2022 ([2022] HKCA 399) dismissing the applicant’s application to extend time to appeal against an order of DHCJ K.W. Lung given on 27 July 2020 in which he refused the applicant’s application for leave to apply 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 20 July 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 section 24(2) of the 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 15 April 2022.

4.  However, under sections 24(5) and 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 3 months which is substantial.  He explained that he did not receive this court’s judgment within time.  The court file showed that even though the court’s judgment was sent to the address provided by the applicant (which is the same as that shown in the Notice of Motion), the letter was returned as the address was incomplete / incorrect.  It is the duty of a litigant to give the court an address to which correspondence can reach him in a timely manner; the consequence of any delay or failure of delivery occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant, see: Re Hasmi Rizwan Imran [2018] HKCA 439 at [15].

6.  Moreover, the applicant has not shown any merits in this intended application for leave to appeal to the Court of Final Appeal.  He advanced the following in the Notice of Motion:

“I would like to infomr (sic) the Honourable Court that there is some error in law in my decision. Decision maker just relied on COI Information and my previous facts which were in favour while rejecting my claim. Actual life occur different situation then what is mentioned in COI Information. The Officer and cours (sic) prefers to ignore the overwheming (sic) of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary (sic) a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

7.  In compliance with the directions of the Registrar of Civil Appeals given on 20 July 2022, the applicant lodged his written submissions on 3 August 2022.  This Notice of Motion is determined on paper without an oral hearing, which we consider appropriate.

8.  In his written submissions, he quoted passages from ST v Director of Immigration ^[1][2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on high standards of fairness.  He submitted that high standards of fairness applied to the determination of a non-refoulement claim, and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  He further referred to section 37ZT of the Immigration Ordinance (Cap. 115) and contended that in dealing with late filing of notice of appeal, the Board may only take account the reasons for delay stated in the application and accompanying evidence, and other relevant matters of fact within the Board’s knowledge.  However, he did not explain or elaborate how these materials setting out general principles assist his intended appeal from our judgment.

9.  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.

10.  Having regard to the judgment of this court, the applicant’s intended appeal has no merit at all. 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 granting leave under the “or otherwise” limb under section 22(1)(b).

12.  By reason of the above, the Notice of Motion filed on 20 July 2022 is dismissed.