RE MD YAZDANI

CAMP 396/2021

[2022] HKCA 1768

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 396 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 958 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 21 March 2022, this court (Kwan VP and Barma JA)  handed down a judgment dismissing the applicant’s application for extension of time to appeal against the decision of Campbell-Moffat J dated 4 December 2018 refusing to grant leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board dismissing the decision of the Director of Immigration rejecting his non-refoulement claim.

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 22 April 2022, for leave to appeal to the Court of Final Appeal.  In the Notice of Motion, the applicant stated, inter alia, that this court was “wrong as a matter of law” and “there is some error in law in my decision” without providing any particulars.

4.  In the affirmation filed on 22 April 2022, the applicant deposed that he was unable to file the Notice of Motion on time due to the “pandemic situation and … the GAP Exchange of correspondence by post also takes longer”.

5.  In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge written submissions with the court. He is thus deemed to have abandoned his right to rely on written submissions.

6.  Having considered the applicant’s Notice of Motion, and affirmation, 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 failed to explain how and when he eventually came to know about the judgment of this court.  We are therefore of the view that the applicant has failed to provide a reasonable explanation for the delay.  However, the delay in this case was a very short one, and we propose to focus on the merits of the intended appeal.

8.  As to this, the matters advanced 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 therefore 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 22 April 2022 is dismissed.