RE IRSHAD MUHAMMAD

CAMP 112/2018

[2019] HKCA 164

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 112 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 783 OF 2017)

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J U D G M E N T

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Hon Yeung Ag CJHC (giving the Judgment of the Court):

1.  By a judgment dated 14 December 2018 ([2018] HKCA 864), this Court (Yeung Acting CJHC and Poon JA) dismissed the applicant’s application for leave to appeal out of time against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 21 May 2018 refusing to grant him leave to apply for judicial review. The intended judicial review was against the decision of Torture Claims Appeal Board dated 25 August 2017 rejecting the applicant’s non-refoulement protection claim.

2.  By a notice of motion dated 27 December 2018, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal.

3.  In the Notice of Motion, the applicant set out the following grounds:

“(1) It should not be the duty of the Judges of the Court of Appeal (when dealing with an application for extension of time) to consider the merits of appeal. This is because I only issued summons with a supporting affirmation that is with regards to the late filing.

(2) Since the Judges gave me the benefit of the doubt and find no fault on my part on the issue of delay, the case should proceed with instructions or directions given to me to provide further grounds of appeal.  There has been no request insofar regarding the grounds of appeal.  The Judges did not actually consider my appeal as there were no grounds put forward, nor was there a requirement that I should put them forward.  As I have mentioned in my written submissions dated 9 August 2018 at [12], ‘As the directions referred to written submissions in support of the summons whereby it was for an extension of time, I have only explained my reasons for the delay.  For any further information required such as the intended grounds of appeal, I crave leave from the Court to submit further submissions if required.’  It is therefore procedurally unfair and is an error in law that the Judges proceeded to determine my case without actually giving me leave to submit further submissions.”

4.  In compliance with the directions given by Master Au-yeung on 3 January 2019, the applicant lodged his written submissions on 10 January 2019.  In his written submissions, the applicant reiterated the grounds of appeal as set out in his Notice of Motion.

5.  We have duly considered the applicant’s notice of motion and his written submissions.  Pursuant to paragraph 3 of Practice Direction 2.1, this application is processed on papers without any oral hearing.

6.  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.  The grounds advanced by the applicant is totally misconceived.  This Court had explained clearly at [14] to [18] of our judgment that the arguability of the intended appeal is an important consideration in an application for extension of time and why we were not satisfied that the applicant had reasonable argument in his intended appeal.  We do not see the grounds as set out in the Notice of Motion and the arguments in the written submissions have any reasonably arguable basis to challenge the findings of this Court.

7.  For the reasons that we gave in our judgment of 14 December 2018, we did not see any prospect of success in the applicant’s intended appeal against our judgment and/or the Judge’s order.  None of questions raised by the applicant in the notice of motion or in his written submissions involve an arguable point or a question of great general or public importance.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) are not met.

8.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his notice of motion.