Re Hossain Belayet

CAMP 7/2020

[2020] HKCA 798

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 7 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 738 of 2018)

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Before: Hon Cheung, Chu and Barma JJA in Court

Date of Judgment: 12 October 2020

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.On 8 June 2020, this Court (Cheung and Chu JJA) handed down our judgment[1] refusing to give leave to the applicant to appeal out of time against the decision of Deputy High Court Judge Josiah Lam given on 23 September 2019 refusing him leave to apply for judicial review.     

2.On 28 July 2020, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  Despite the direction given by the Registrar of Civil Appeals, he has not put in a written submission to support his application.

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.Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, 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.  Under section 24(5), the Court of Appeal may extend the time for the filing of the notice of motion.

5.The applicant’s notice of motion is late by about three weeks, which is not a very serious delay.  The applicant explained in his affirmation that he was not aware of the rule regarding the time limit for making the application.  Having regard to the fact that the applicant is a litigant in person, we are prepared to accept his explanation.     

6.We turn next to consider the merits of the application.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

7.Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, 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 the following points:

(1)  There is some error in law in the decision. 

(2)  Decision maker just relied on COL information and facts which were in favour of rejecting the applicant’s claim, when life in real situation is differently. 

(3)  The officer and courts prefer to ignore the overwhelming evidence of violence towards minorities. 

(4)  The Decision displayed a biased and formulaic approach.  It did not fairly assess the danger to the applicant’s life and was clearly unreasonable.      

9.We are of the view that these points do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  They relate only to the circumstances of the applicant, and do not involve any question of great general or public importance, as required by section 22(1)(b).  Further, the complaint about the use of country of origin information is a new point, which was not argued in the application to this court for leave to appeal out of time.  It is not permissible to raise a new argument in an application for leave to appeal.  The complaint is, in any event, not supported by particulars.  As to the other points, they are also general assertions with no supporting particulars.     

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

11.As the statutory requirements for giving leave to appeal are not met, it is futile to extend the time for the filing of the notice of motion.  Accordingly, we dismiss the notice of motion.  

The applicant, unrepresented, acted in person.