RE KHAWAR ABBAS

CAMP 531/2021

[2022] HKCA 819

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 531 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1045 OF 2018)

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J U D G M E N T

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Hon Chu JA (giving the Judgment of the Court):

1.  On 11 March 2022, this court handed down our judgment ([2022] HKCA 361)  dismissing the applicant’s application to extend time to appeal the decision of Deputy High Court Judge Bruno Chan given on 21 May 2021 refusing his application for leave to apply for judicial review in respect of her non-refoulement claim.

2.  On 25 April 2022, the applicant filed a Notice of Motion together with an affirmation to apply for leave to appeal this court’s judgment to the Court of Final Appeal.  Despite directions given by the Registrar for Civil Appeals, the applicant has not lodged a written submission.

3.  Having considered the applicant’s Notice of Motion and affirmation, 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.  The applicant’s Notice of Motion is out of time, as section 24(2)  of the Hong Kong Court of Final Appeal Ordinance 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.  By reason of the closure of the High Court Registry between 9 March and 11 April 2022 due to the public health situation caused by the pandemic, the deadline for filing the Notice of Motion fell on 12 April 2022[1].

6.  Under sections 24(5)  and 24(6)  of the Hong Kong Court of Final Appeal Ordinance, 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. 

7.  In the present case, the applicant’s notice of motion is late by about two weeks.  In his affirmation, the applicant stated that he was unable to file the Notice of Motion on 12 April 2022 when the High Court registry re-opened.  We are prepared to accept the explanation and would focus on the merits of the intended appeal.  

8.  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.

9.  The Notice of Motion stated the following as grounds in support of the application:

(1)  The Court did not consider the summons for extension of time properly.  There was no scrutiny of the grounds submitted by the applicant.  The decision was unfair and disappointing.

(2)  The applicant will be killed by his enemy if he returns to his home country, but the Director of Immigration and the Torture Claim Appeals Board did not scrutinise his claim properly.  

10.  We are of the view that the matters put forward by the applicant in the Notice of Motion 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 Ordinance. Further, the complaints made by the applicant in the renewed application for extension of time had been considered in our judgment.  Our reasons for rejecting them had been set out in [21] and [22] of the judgment.  The grounds in the Notice of Motion are unarguable.

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, it would be futile to extend the time to apply for leave to appeal.  Accordingly, we dismiss the Notice of Motion.