RE FARUQUE MOHAMMAD

CACV 596/2020

[2021] HKCA 1949

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 596 OF 2020

(ON APPEAL FROM HCAL NO 1512 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 (Lam VP as he then was, Yuen JA and Lok J)  handed down judgment on 15 June 2021 ([2021] HKCA 859)  dismissing the applicant’s appeal against an order of DHCJ Bruno Chan (“the Judge”)  given on 13 July 2020 refusing to give the applicant leave to apply for judicial review in respect of his non-refoulement claim (“the Judge’s Decision”).

2.  On 9 November 2020, the applicant filed a Notice of Appeal to appeal against the Judge’s Decision.  As mentioned earlier, in our judgment of 15 June 2021, 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 19 July 2021, 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 deadline for filing the Notice of Motion expired on 13 July 2021.

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 6 days.  In his affirmation dated 19 July 2021, he alleged: “I did not get the letter on time.  For this reason I did not submit my notice of motion on time.” The court file showed that our judgment was sent to the applicant’s address on 15 June 2021 and the address is the same as the one provided in the Notice of Motion.  There is no reason to suggest the judgment would take more than the usual local delivery time to reach the applicant’s address and the applicant should have received the same within 28 days from 15 June 2021.

6.  As to the merits of the intended appeal, the applicant advanced the following in the Notice of Motion:

“I would like to infomr (sic)  the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL Information and my previous facts which were in favour while rejecting my claim. Actual life occur different situation then what is mentioned in COL Information. The Officer and cours (sic)  prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

7.  Pursuant to the directions given by Registrar of Civil Appeals on 19 July 2021 and Practice Direction 2.1, the applicant lodged his written submissions on 2 August 2021.  The Registrar of Civil Appeals further directed that the Notice of Motion shall be determined on paper only without an oral hearing.  As it is appropriate to do so, we proceeded to determine this application on paper. 

8.  In the applicant’s written submissions, he 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 further 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.  Lastly, he referred to s. 37ZT of the Immigration Ordinance (Cap. 115)  which is concerned with the late filing of notice of appeal to the Board. However, he did not explain and elaborate how the aforesaid cases and legal provisions were relevant to or would assist his case.

9.  S. 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.  Having regard to the judgment of this court, the applicant’s intended appeal has no merits.  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 the “or otherwise” limb under s. 22(1)(b).

12.  By reason of the above, the Notice of Motion filed on 19 July 2021 is dismissed.