RE YOUNUS alias MOHAMMAND RAZIB alias RAZIB alias YUNUS

CACV 411/2018

[2021] HKCA 215

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 411 OF 2018

(ON APPEAL FROM HCAL NO. 275 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court):

I.    Leave to appeal

1.1.  This is the applicant’s notice of motion for leave to appeal to the Court of Final Appeal out of time against the judgment of this Court (Cheung JA and L Chan J) handed down on 27 December 2018 ([2018] HKCA 991). We dismissed his appeal against the decision of Deputy High Court Judge Josiah Lam on 13 August 2018 ([2018] HKCFI 1846) refusing leave to apply for judicial review concerning his non-refoulement claim.  The applicant filed his notice of motion on 28 October 2020 for leave to appeal out of time to the Court of Final Appeal.  He was over one year late.

1.2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals directed on 30 October 2020 that the notice of motion shall be determined on paper only without an oral hearing.  The applicant lodged his written submission on 10 November 2020. Having considered his submission, we consider it appropriate to determine this application on paper and will proceed to do so.

II.    The applicant’s grounds

2.1.  The applicant stated in the notice of motion that:

1)  He will submit detail grounds of appeal at a later stage;

2)  There was a failure to adhere to high standards of fairness;

3)  He was not invited to further elaborate on his case; and

4)  He has a wife and a son who was born in Hong Kong.  His son is severely ill. He wishes to stay with his family in Hong Kong.

2.2.  In his supporting affirmation, he exhibited various documents regarding his son such as health records, identification and birth certificate.

2.3.  In his written submissions, he reiterated that his son is constantly unwell. He stated that he cannot be refouled back to his country of origin as it was in turmoil and unsafe.

III.    Analysis

3.1.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484), an application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Section 24(5) further provides that the Court of Appeal may, if it considers appropriate, extend the time for making an application for leave to appeal.

3.2.  Section 22(1)(b) of the Ordinance 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, 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.

3.3.  In the present application, the applicant was late for over a year. He was very late.  The relevant factors in considering whether an extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at paragraph 1.4).

3.4.  The applicant did not provide any reason for his delay of over a year.   

3.5.  In any event, the applicant has not shown any merits in his intended application for leave to appeal to the Court of Final Appeal.  He has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b). 

3.6.  For the above reasons, we decline to grant an extension of time to the applicant to file an application for leave to appeal to the Court of Final Appeal and dismiss the notice of motion filed on 28 October 2020.