RE ALOULA MAGLIWE

CAMP 275/2019

[2021] HKCA 763

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 275 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 487 OF 2017)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court) :

1.  By a judgment dated 11 August 2020 ([2020] HKCA 595), this Court (Yeung VP and Chu JA) dismissed the applicant’s appeal against the decision of DHCJ Woodcock (“the Judge”) given on 24 May 2018 in HCAL 487/2017 refusing to grant him leave to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board/Adjudicator of the Non-refoulement Claims Petition Office (“the Board”) given on 28 April 2017 dismissing his petition/appeal from the decisions of the Director of Immigration (“Director”) given on 13 April 2016 and 17 March 2017 rejecting his non-refoulement claim.

2.  By a Notice of Motion dated 3 March 2021, the applicant seeks leave to appeal this court’s judgment to the Court of Final Appeal. However, it was out of time, as section 24(2) of the 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 8 September 2020. 

3.  However, under section 24(5) and section 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. 

4.  In the present case, the applicant had delayed for almost 6 months in filing his Notice of Motion and the delay is substantial and significant. 

5.  In his supporting affidavit filed on 3 March 2021, he explained that he was informed by the immigration officer on 26 August 2020 that his appeal under CAMP 275/2019 was dismissed by this court on 11 August 2020 but he did not receive our judgment.  He therefore attended the High Court Registry to try to obtain a copy of our judgment but he was only provided with a court decision dated 3 October 2019 and he believed the officer in the Registry made a mistake.  With the assistance of the immigration officer, he finally obtained a copy of our judgment in or about January 2021.  He further found that his address was not fully written in the Tenancy Agreement by his landlord so that the updated address provided by him to the court was not correct and as a result the court letter could not be delivered to him.

6.  Even if we were to accept the applicant’s explanation that he only obtained our judgment in or about January 2021, he only filed his Notice of Motion on 3 March 2021.  There is no explanation for the delay between January to 3 March 2021.  

7.  As to the merit of the intended appeal, the applicant did not provide any ground of appeal in his Notice of Motion.

8.  Pursuant to the directions made by the Registrar of Civil Appeals on 4 March 2021, the applicant should lodge his written submissions on or before 17 March 2021.   However, the applicant delayed the matter for 6 weeks and only lodged his written submissions on 28 April 2021. In any event, the written submissions did not set out any grounds pinpointing any error of law in our judgment.

9.  In the written submissions, the applicant merely set out his complaints against the Board’s decision:

(1)  There was a lack of legal and language assistance and insufficient time for him to prepare for the appeal hearing before the Board.

(2)  The Board misunderstood the situation of his home country and the essence of his case and therefore wrongly rejected his case based on erroneous Country of origin information (“COI”).

(3)  The Board failed to consider his case properly and wrongly assessed the risk faced by the applicant in his home country.

10.  The Registrar had directed that unless the court otherwise directs, the notice of motion shall be determined on the papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

11.  Section 22(1)(b) of the HKCFAO 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 in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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. 

12.  As mentioned earlier, the applicant failed to pinpoint any error of law or raised any discernible grounds to reverse our judgment and his intended appeal is bound to fail.  As explained at [28] and [29] of our judgment, the applicant’s claim was rejected on the issue of credibility by the Board and in any event, there was only a remote or speculative risk that the applicant would be harmed upon his return to Togo. We also endorsed the Judge’s finding that there was no error of law or procedural unfairness or irregularities in the Board’s decision.  In our judgment, nothing set out in the Notice of Motion and the written submissions can be construed as valid ground of appeal to Court of Final Appeal. 

13.  For the reasons that we gave in our judgment of 11 August 2020, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

14.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal out of time and dismiss his Notice of Motion.