Re Saqib Mehmood

CAMP 140/2019

[2020] HKCA 867

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 140 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 1429 OF 2018)

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J U D G M E N T

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

1.On 24 June 2020, the applicant filed his Notice of Motion to apply for leave to appeal to the Court of Final Appeal (“CFA”) against this Court’s (Cheung and Au JJA) judgment of 19 June 2020 (“the Judgment”) [2020] HKCA 491.  For the sake of convenience, we will in this judgment adopt the same abbreviations used in the Judgment.

2.In the Judgment, this Court:

(1)  refused to extend time for the applicant to appeal against the Deputy Judge’s Decision refusing the applicant leave to apply for judicial review against the Director’s Decisions and the Board’s Second Decision;

(2)  refused to grant leave to the applicant to appeal against the Deputy Judge’s Decision refusing to grant extension of time to the applicant to apply for judicial review against the Board’s First Decision.

3.The facts and issues in the appeal, as well as the Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, pursuant to paragraph 3 of Practice Direction 2.1, we see no reason to deviate from the usual practice and proceed to consider this application without an oral hearing.

4.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 provides that an appeal shall lie to the CFA at the discretion of this Court or the CFA 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 CFA for decision.

5.The applicant has set out the following matters in his Notice of Motion for leave to appeal to the CFA:

“I am the applicant herein. I would like to inform court There is some error in law in my decision Decision maker just relied on COI information and my previous facts which were favour on reject my claim Actual life occur different situation the mentioned COI information officer and courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining The decision is betray a bias and formula approach unlike fairly access the danger of my life and clearly calcute to reject my claims.

I am also requested to court everywhere in the world have covid-19 have lot of people die in Pakistan also effected from covid-19 I am requested court please save my life as a human been I have also rights living this earth. Bundle of thanks.” [sic]

6.The applicant did not file an affirmation in support nor did he lodge his written submissions as directed.

7.We are of the view that the matters raised in the applicant’s Notice of Motion are only bare and general assertions.  He had failed to identify with sufficient particularities any errors in the Judgment.  These are not viable grounds.

8.Thus, the intended appeal against the part of the Judgment which we refused to grant extension of time to the applicant has no merits.

9.Insofar as the intended appeal against our refusal to grant leave to the applicant to appeal the Deputy Judge’s Decision is concerned, it is also devoid of merits.

10.Though it has recently been held by the CFA in H v Director of Immigration [2020] HKCFA 22 that an applicant did not need Section 14AA leave to appeal to this Court in respect of a refusal of extension of time to bring an application for leave to judicial review, and technically an appeal can be brought to this Court by way of appeal out of time, it does not assist the applicant in this instance.

11.It has been held by Lam VP in Re Rashid [2020] HKCA 612 at [6] that:

(1)  Since the application is made in respect of the Court’s refusal of Section 14AA leave and it serves no purpose for an appeal to the CFA regarding such refusal of leave.  The reversal of a decision on Section 14AA leave would not automatically lead to success in an appeal against the decision of the Court of First Instance.  To achieve that the applicant needs to bring an appeal to this Court;

(2)  Due to lapse of time, the applicant needs an extension of time to bring an appeal to this Court and if such application is made, the Court will have regard to the merits of the intended appeal in deciding if extension should be granted.

12.However, having regard to our view on the lack of merit in his intended appeal as set out at paragraphs 33 to 58 of the Judgment, the Court will not grant extension of time for a futile appeal to be brought.

13.In the circumstances, we do not consider that there is any question of great general or public importance or otherwise which ought to be submitted to the CFA for determination.  Plainly, the statutory requirements under section 22(1)(b) are not met.

14.For these reasons, we refuse to grant leave to appeal to the CFA, and dismiss the applicant’s Notice of Motion.

The applicant acting in person