RE ISLAM ASIA

CAMP 29/2021

[2021] HKCA 2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 29 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 848 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):

1.  On 30 July 2021, this Court handed down judgment ([2021] HKCA 1098) dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge Bruno Chan given on 1 September 2020 refusing her application for leave to apply for judicial review in respect of her non‑refoulement claim.

2.  On 6 October 2021, the applicant filed a notice of motion and affirmation applying for leave to appeal this Court’s judgment to the Court of Final Appeal.  The applicant has also lodged a written submission on 20 October 2021.

3.  Having considered the applicant’s 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.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’) (Cap. 484) provides that 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 extend the time for the filing of the notice of motion.

6.  The applicant’s present application is out of time by one week.  The applicant explained in the supporting affirmation that he received the judgment late because his neighbour, who took the Court’s letter from the letter box, had forgotten to give it to him.

7.  As to the merit of the intended appeal, section 22(1)(b) of the HKCFAO 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.

8.  The notice of motion stated that :

1)  The applicant’s life was still in danger.

2)  If the applicant was refouled he would face hardship.

3)  The Board relied on source of news not officially recognized.

9.  In the applicant’s written submissions, he stated general non‑refoulement legal principles and authorities without specifying how they relate to the particulars of his case.

10.  We are of the view that the grounds and arguments put forward by the applicant do not constitute viable grounds for giving leave to appeal.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

11.  Nor do we see any basis for the ‘or otherwise’ limb under section 22(1)(b).

12.  As the statutory requirements for giving leave to appeal are not met, the intended appeal has no merit and there is no basis for us to extend the time for the filing of the notice of motion. Accordingly, we dismiss the notice of motion.