RE SORDER MD MIZAN

CACV 482/2019

[2021] HKCA 725

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 482 OF 2019

(ON APPEAL FROM HCAL NO. 63 OF 2018)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.  By a judgment dated 27 May 2020 ([2020] HKCA 373), this Court (Yeung VP, Pang JA and Marlene Ng J) dismissed the applicant’s appeal against the decision of DHCJ Bruno Chan (“the Judge”) given on 3 October 2019 in HCAL 63/2018 refusing to grant him leave to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board/Adjudicator of the Non-refoulement Claims Petition Office (“the Board”) given on 8 January 2018 dismissing his petition/appeal from the decision of the Director of Immigration (“Director”) given on 27 March 2017 rejecting his non-refoulement claim.

2.  By a Notice of Motion dated 1 March 2021, the applicant seeks 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 deadline for filing the Notice of Motion expired on 24 June 2020. 

3.  However, under section 24(5) and section 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. 

4.  In the present case, the applicant had delayed for more than 8 months in filing his Notice of Motion and the delay is substantial and significant. 

5.  In his supporting affirmation filed on 1 March 2021, he only said that he did not receive our judgment.  We do not consider there is any good reason for the substantial delay.  

6.  As to the merit of the intended appeal, the applicant provided the following grounds in his Notice of Motion:

“The High Court Judges refused my leave to appeal for judicial review but I have no way to return Bangladesh. I want to go to the Court of Final Appeal. Please accept my application to go to Court of Final Appeal.”

7.  Pursuant to the directions made by the Registrar of Civil Appeals on 2 March 2021, the applicant should lodge his written submissions on or before 15 March 2021.   However, the applicant delayed the matter for more than 1 month and only lodged his written submissions on 16 April 2021. 

8.  In any event, the written submissions did not set out any ground pinpointing the error of law in our judgment.  He only reiterated the background of his case and claimed that he came to Hong Kong to save his life.  He urged this court to grant leave to him to appeal to the Court of Final Appeal.

9.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on the papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

10.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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. 

11.  Here, the applicant failed to pinpoint any error of law or raised any discernible grounds to reverse our judgment and his intended appeal is bound to fail.  In our judgment, the applicant’s case has no merit and nothing set out in the Notice of Motion and the written submissions can be construed as valid ground of appeal to the Court of Final Appeal. 

12.  For the reasons that we gave in our judgment of 27 May 2020, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the Notice of Motion and the written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

13.  Accordingly, we refuse to extend time for the applicant to seek leave to appeal to the Court of Final Appeal and dismiss his Notice of Motion.