RE SHINTU PAUL

CAMP 438/2021

[2022] HKCA 1044

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 438 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 2741 OF 2018)

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J U D G M E N T

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

1.  On 27 May 2022, the applicant filed a Notice of Motion together with a supporting affirmation to apply for leave to appeal to the Court of Final Appeal out of time against this Court’s (Au and Chow JJA)  judgment of 31 March 2022 (“the Judgment”)  ([2022] HKCA 475). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 30 June 2021, refusing his application for leave to apply for judicial review (“the Leave Decision”)  ([2021] HKCFI 1679).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal 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.

4.  Pursuant to section 24(2)  of the HKCFAO, an appellant has 28 days from the date of the Judgment to seek leave to appeal to the Court of Final Appeal.  In the present case, the deadline for the applicant to seek leave to appeal against the Judgment fell on 28 April 2022.  Accordingly, the applicant was almost one month late in taking out his application for leave to appeal to the Court of Final Appeal.

5.  As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the Court has a discretion to extend time under section 24(5)  of the HKCFAO only if good and sufficient grounds are shown by the applicant: see Re Imran Muhammad [2021] HKCA 482 at [9] and the authorities cited therein.  In deciding whether there are such good grounds, the Court is entitled to take into account (a)  the length of the delay; (b)  the reasons for the delay; (c)  the chances of the appeal succeeding if an extension of time is granted; and (d)  the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another [2021] HKCA 83 at [4] and the authorities cited therein.

6.  In his Notice of Motion, the applicant stated:

“DIRECTOR OF IMMIGRATION AND TORTURE CLAIM APPEAL BOARD REJECTED MY CLAIM FOR NON-REFOULEMENT. THE HIGH COURT AND THE COURT OF APPEAL DISMISSED MY APPLICATION FOR LEAVE. I AM NOT TOTALLY SATISFIED. I WANT TO GO TO THE COURT OF FINAL APPEAL.” (sic)

7.  In his supporting affirmation, the applicant stated:

“APPLY OF NOTICE OF MOTION BUT OUT OF TIME. I REQUEST YOU TO ACCEPT MY NOTICE OF MOTION.” (sic)

8.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 10 June 2022.  In those submissions, he repeated the factual basis and procedural history of his non-refoulement claim.  He also claimed that his life would face real threat and his enemy would not give him any chance if he returned to India.

9.  At the outset, the applicant’s delay of nearly one month was very substantial and he failed to provide any reason, let alone good and sufficient reason, in support for his delay.

10.  More importantly, his allegations are wholly without substance.  The matters raised in his written submissions are all vague and bare allegations without specific particulars or evidence in support.  General assertions of his fear to return to his home country do not constitute viable grounds of appeal. Moreover, nowhere in his Notice of Motion or written submissions did he identify any error in the Judgment.  As such, there is simply no viable ground of appeal and his intended appeal must fail on this basis alone.

11.  In any event, the applicant’s contentions are fact-specific and do not relate to any question of great general or public importance.

12.  Accordingly, he failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

13.  For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant him extension of time to pursue a hopeless appeal.  Accordingly, the Notice of Motion filed on 27 May 2022 is dismissed.