RE HARPAL SINGH

CACV 174/2021

[2022] HKCA 1430

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 174 OF 2021

(ON APPEAL FROM HCAL NO 3006 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 397) dismissing the applicant’s appeal against an order of DHCJ P Li (“the Judge”) given on 7 April 2021 refusing to grant leave to the applicant to apply for judicial review in respect of his non‑refoulement claim (“the Judge’s Decision”).

2.  On 16 April 2021, the applicant had filed a Notice of Appeal to appeal against the Judge’s Decision. As mentioned earlier, in our judgment of 18 March 2022, we dismissed the applicant’s appeal. The facts and issues in the appeal 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 29 April 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 s.24(2) of 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 19 April 2022.

4.  However, under s.24(5) and s.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 10 days in filing his Notice of Motion which is not insignificant. He did not explain his delay in his Notice of Motion or supporting affirmation.

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

“1. The learned judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration on 7^th April 2021 refusing my application for judicial review.

2. The learned judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director was required to give reason justifying the decision.”

7.  In compliance with the directions of the Registrar of Civil Appeals made on 29 April 2022, the applicant lodged his written submissions in support of the Notice of Motion on 12 May 2022. This Notice of Motion is determined on paper without an oral hearing, which we consider appropriate.

8.  In his written submissions, the applicant simply 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 Wednesbury unreasonableness. 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. The written submission 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 of 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 how those legal authorities and provisions would apply to or assist his case.

9.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance 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.  The applicant’s intended appeal has no merit at all as it does not engage with the judgment of this court. The grounds as set out in the Notice of Motion are vague and general. No question of great general or public importance has been identified as required by s.22(1)(b) of the HKCFAO.

11.  Nor do we see any basis for leave under the “or otherwise” limb under s.22(1)(b).

12.  By reason of the above, the Notice of Motion filed on 29 April 2022 is dismissed.