RE IRFAN MASHOOQ

CAMP 78/2019, [2023] HKCA 1371

On Appeal From [2018] HKCFI 1090

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 78 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 710 OF 2017)

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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 handed down judgment on 25 October 2019 ([2019] HKCA 1181) (“the CA Judgment”) dismissing the applicant’s application for extension of time to appeal against an order of Campbell-Moffat J (“the Judge”) given on 29 June 2018, in which she dismissed the application of the applicant for leave for judicial review in respect of his non-refoulement claim.

2.  On 21 August 2018, the applicant filed a summons in the Court of First Instance for leave to appeal out of time, which the Judge dismissed on 9 October 2018.

3.  On 7 May 2019, the applicant filed a summons in this court, which as mentioned earlier we dismissed on 25 October 2019.  The facts and issues in the application before this court, as well as the court’s reasons for dismissing it, are set out in the CA Judgment and will not be repeated here.

4.  On 18 August 2023, the applicant filed a Notice of Motion for leave to appeal the CA 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 22 November 2019.

5.  However, under sections 24(5) and 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. 

6.  In the present case, the applicant was late by over three years, which is substantial and inordinate.  He explained in his supporting affirmation that he was not aware of the procedural rules as a lay person and he did not receive the CA Judgment.  We note from the court file that the CA Judgment was posted on 25 October 2019 to the applicant’s address as stated in the summons he filed on 7 May 2019.  If, for any reason, he did not receive the CA Judgment, he has not explained when and how he first became aware of it.  We do not accept the applicant’s excuse for the delay.   

7.  In any event, as for the merits of the intended appeal, the applicant advanced the following in the Notice of Motion filed on 18 August 2023:

“1.  The learned Judges were wrong as a matter of Law for not having applied the principle of procedural fairness to the decision of the director whereby the director was required to give reasons justifying the decision.

2.  The learned Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration refusing my application for Judicial Review.

3.  There is some error in law in my decision. The decision maker just relied on COL information any my previous facts, which were favour on rejecting my claim.

4.  Actual life occur different situation then mentioned COL information, Officer and courts prefer to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining.

5.  The Judge did not apply the law properly & Procedural unfairness.”

8.  In compliance with the directions of the Registrar of Civil Appeals made on 18 August 2023, the applicant lodged his written submissions in support of the Notice of Motion on 4 September 2023.  We consider it appropriate to determine this Notice of Motion on paper without an oral hearing. 

9.  In his written submissions, the applicant quoted passages from 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 section 37ZT of the Immigration Ordinance (Cap. 115) which concerns the late filing of a notice of appeal to the Board.  However, he did not explain how the aforesaid cases and statutory provision were related to or would assist his case.

10.  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.

11.  Having regard to the CA Judgment, the applicant’s intended appeal has no merit at all.  No question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

12.  Nor do we see any basis for granting leave under the “or otherwise” limb under section 22(1)(b).

13.  By reason of the above, the Notice of Motion filed on 18 August 2023 is dismissed.