RE MAROOF AHMED

CACV 267/2020

[2021] HKCA 925

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 267 OF 2020

(ON APPEAL FROM HCAL NO 400 of 2018)

__________________________

__________________________

________________

JUDGMENT

________________

Hon Chu JA giving the Judgment of the Court:

1.  On 20 April 2021, this Court handed down our judgment[1] dismissing the applicant’s application for extension of time to appeal and striking out his notice of appeal.  The applicant’s intended appeal is against the decision of Deputy High Court Judge Bruno Chan given on 13 November 2019 which refused to give him leave to apply for judicial review.     

2.  On 7 May 2021, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  He has also put in a written submission to support his application.

3.  Having considered the notice of motion, affirmation and written submission, 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.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, 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.

6.  The notice of motion set out two grounds for the application as follows:

(1)  The judges were wrong as a matter of law for not having applied the principle of irrationality to the decision of the Director of Immigration. 

(2)  The judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the Director’s decision and the Director was thereby required to give reason to justify his decision.

7.  The applicant’s affirmation stated that there is a good ground of appeal that had not been considered by the Court of Appeal, and he believed there are merits in his appeal.  He however did not set out the ground of appeal or provide any details of it.

8.  In his written submission, the applicant stated that the court had not considered his grounds thoroughly.  He reiterated his argument that because his notice of appeal was accepted by the Appeals Registry and a case number was assigned to it, it was impracticable for him to apply to the Court of First Instance for extension of time to appeal.  The applicant also argued that because he had not been provided with legal and language assistance and that neither the Board’s decision nor the Judge’s decision was interpreted to him, the burden has passed to the court to help him to find errors in the decisions and grounds of appeal.

9.  We are of the view that what was put forward by the applicant do not amount to viable grounds for granting leave to appeal to the Court of Final Appeal.  Firstly, and most importantly, the applicant has not identified any question of great general or public importance, as required by section 22(1)(b).  All the matters he put forward relate only to the circumstances of his case.  

10.  Secondly, the appeal was struck out as being incompetent because the appeal was seriously out of time and no extension of time had been given by the Court.  The Registrar of Civil Appeals had pointed out to the applicant that he should first apply to the Court of First Instance for extension of time to appeal.  Even though his notice of appeal had been accepted for filing and a case number was assigned to it, the applicant could have issued a summons to apply for extension of time in HCAL 400/2018.  There is no merit in the argument that it was impracticable to make the application for extension of time to the Court of First Instance.  The applicant has failed to show there are exceptional circumstances justifying applying directly to the Court of Appeal for extension of time to appeal.

11.  Thirdly, there is no legal basis for the argument that the Court is under a duty to identify errors in the Director’s and the Board’s decisions and to look for grounds of appeal for him.   

12.  Fourthly, the grounds of irrationality and procedural unfairness mentioned in the notice of motion are new grounds that had not been raised in the application for leave to judicial review.  It is not open to the applicant to raise them at this late stage. 

13.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

14.  As the statutory requirements for giving leave to appeal are not met, we dismiss the notice of motion.