RE MUMTAZ MUHAMMAD

CACV 54/2021

[2022] HKCA 1428

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 54 OF 2021

(ON APPEAL FROM HCAL NO 2270 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 handed down judgment on 31 December 2021 ([2021] HKCA 1993) dismissing the applicant’s appeal against an order of DHCJ C P Pang (“the Judge”) given on 2 February 2021 refusing to grant leave to the applicant to apply for judicial review in respect of his non‑refoulement claim (“the Judge’s Decision”).

2.  On 10 February 2021, the applicant had filed a Notice of Appeal to appeal against the Judge’s Decision. As mentioned earlier, in our judgment of 31 December 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 11 May 2022, 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 last day for filing the Notice of Motion expired on 28 January 2022.

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 for more than 3 months in filing his Notice of Motion which is a substantial delay. He did not explain his delay in his Notice of Motion or supporting affirmation.

6.  Moreover, the applicant has not shown any merits in his intended application for leave to appeal to the Court of Final Appeal. He advanced the following in the Notice of Motion:

“Director of Immigration and Torture Claims Appeal Board rejected my claim of non-refoulement. The High Court and the Court of Appeal dismissed my leave to apply for judicial review. I want to appeal to the Court of Final Appeal.”

7.  In compliance with the directions of the Registrar of Civil Appeals made on 11 May 2022, the applicant lodged his written submissions in support of the Notice of Motion on 25 May 2022. This Notice of Motion is determined on paper without an oral hearing, which we consider appropriate.

8.  In his written submissions, the applicant said that he does not like his country as it is the worst land in the world and the people were poor and not educated, and the political parties take all the money and resources. He further asserted that people in his country want to kill him. He urged this Court to grant him leave to appeal to the Court of Final Appeal.

9.  Section 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 merit at all. 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 leave under the “or otherwise” limb under s.22(1)(b).

12.  By reason of the above, the Notice of Motion filed on 11 May 2022 is dismissed.