RE KHAN ASAD

CAMP 85/2018

[2020] HKCA 153

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 85 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 677 OF 2017)

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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)   Leave to appeal to the Court of Final Appeal

1.1.  On 28 August 2018, this Court (Kwan VP and Cheung JA) gave the decision dismissing the applicant’s extension of time to appeal against the decision of Deputy High Court Judge Woodcock given on 9 March 2018 in which she refused to grant extension of time for leave to apply for judicial review against the decisions of the Torture Claims Appeal Board and the Director of Immigration.

1.2.  The applicant now applies, by a notice of motion and supporting affirmation filed on 4 December 2019, for leave to appeal against our decision to the Court of Final Appeal.  Despite the directions given by the Registrar of Civil Appeals, the applicant has not put in a written submission to support his application.

1.3.  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.

1.4.  The applicant’s notice of motion is glaringly late.  According to section 24 of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’), the applicant’s notice of motion ought to have been filed with the Court within 28 days of our extension decision.  The applicant is about one year and three months late.  The applicant stated in his affirmation that he was not aware of ‘the decision’ which we interpret to mean our decision because he was detained.  No further details were provided.  This is a bare allegation unsupported by any explanation.  We will not accept the applicant’s reasons for the delay.

1.5.  Doing the best we could to understand the applicant’s Notice of Motion, the applicant stated that our extension decision was wrong because we did not apply the principles of irrationality and procedural unfairness to assess the Director’s decision.

2)  Legal principles

2.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘HKCFAO’) leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

3)  Our view

3.1.   The matters stated by the applicant in his Notice of Motion do not constitute grounds for granting leave 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 in accordance with section 22(1)(b) of the HKCFAO.  Nor is there any such question apparent to us from the matters he has raised in his document.

3.2.   We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

4)  Disposition

4.   For these reasons, the Notice of Motion is dismissed.