Re Gurung Mansingh

CAMP 31/2018

[2018] HKCA 935

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO CAMP 31 OF 2018

(ON AN INTENDED APPEAL FROM HCAL 444/2017)

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Before:  Hon Chu JA, Barma JA and McWalters JA in Court

Date of Handing Down Judgment:  10 December 2018

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J U D G M E N T

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

1.On 29 May 2018, this court (Chu and Barma JJA) handed down a judgment dismissing the applicant’s application for extension of time to appeal against the decision of Deputy High Court Judge Woodcock (“the judge”) on 7 March 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decisions of the Director of Immigration rejecting his non‑refoulement claim.

2.The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3.The applicant subsequently applied, by a notice of motion dated 12 September 2018, for leave to appeal to the Court of Final Appeal.  The applicant stated in his notice of motion that:

(1)  he has an arguable chance of success in his application for leave to appeal; and

(2)  the reason for the delay in making the application for leave to appeal was that he was unaware of the 28 days limitation.

4.The applicant also filed an affirmation dated 12 September 2018.  He repeated the matters in the notice of motion and identified 2 questions of great general or public importance, namely:

(1)  whether lack of legal representation is a reasonably arguable basis to challenge the fairness of the process; and

(2)  whether there ought to be an additional basis for advancing a case on the BOR2 risk separate from the BOR3, torture and prosecution risks.

5.In compliance with the directions of the court, the applicant lodged a written submission in support of his application on 26 September 2018.  In his written submission, the applicant repeated the matters in the notice of motion and the affirmation.  He also submitted that there was a failure to consider the threats from his uncle and there was no proper consideration of the fact that he cannot move around in Nepal because his uncle would still be able to locate him.

6.Having considered the applicant’s notice of motion, affirmation and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of his notice of motion, affirmation and written submission.

7.Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the Ordinance”), a notice of motion 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.  The applicant filed the notice of motion over 3 months after our judgment dated 29 May 2018.  There was thus serious delay in bringing this application. 

8.Under section 24(5) of the Ordinance, this court may extend the time for filing a notice of motion.  However, no such application for an extension of time has been made.  

9.This court has held that very good grounds have to be shown before the court’s discretion to extend time under section 24(5) can be exercised.  The relevant factors to be taken into account are (1) length of the delay, (2) reason for delay, (3) merits of the proposed appeal, and (4) prejudice to the other party (§6 Vu Van Khanh v Director of Immigration [2018] HKCA 431).  Here, the delay is substantial and the applicant has failed to provide any reason for the delay.

10.As for the merits of the proposed appeal, the matters stated by the applicant in his notice of motion do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  We do not agree that the questions identified by the applicant are of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484. 

11.We note that, hitherto, the applicant has not raised the matter identified in his affirmation dated 12 September 2018 in his application for leave to appeal to this court.  As we have explained before, it is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it;[2] nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[3] 

12.In any event, we are satisfied the questions identified by the applicant are not reasonably arguable before the Court of Final Appeal.  Both questions lack particulars and the applicant has failed to identify any authority to support his propositions.

13.We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

14.For these reasons, we refused to extend time for filing the notice of motion, and the notice of motion dated 12 September 2018 is dismissed.

The applicant acting in person