Re Bangash Shmas Ur Rehman

CAMP 314/2019

[2021] HKCA 144

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 314 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 179 of 2018)

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Before: Hon Cheung, Chu and Au JJA in Court

Date of written submission: 4 January 2021

Date of Judgment: 5 February 2021

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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 grant extension of time to the applicant to appeal against the decision of Deputy High Court Judge Bruno Chan given on 21 December 2018 which refused to give him leave to apply for judicial review.     

2.On 22 December 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.  Pursuant to the directions given by the Registrar of Civil Appeals, he has put in a written submission to support his application.

3.Having considered the applicant’s notice of motion, affirmation and written submission, 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 has been set out in our judgment.  We will not repeat them.

5.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.  Section 24(5) of the Ordinance further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

6.The applicant’s notice of motion is late by more than five months, which is serious delay.  The applicant stated in his affirmation that he was unrepresented and had no means to seek proper legal advice, he believed there was a good cause in his case which had not been considered, and he never received, and was unaware of, the decision until being informed by the Immigration officer.

7.We do not accept these are satisfactory reasons for the delay. We notice from the Court file that when the applicant issued this action on 20 December 2019, he stated his address to be Castle Peak Bay Immigration Centre.  This Court’s judgment and order of 8 June 2020 was mailed to this address, but they were returned by the Immigration Department for the reason that the applicant had left the centre.  It is the duty of the applicant to inform the Court of any change in his address; however, the applicant did not inform the Court that he had left the Castle Peak Bay Immigration Centre or his new address.  In these circumstances, the fact that he did not receive the Court’s judgment is not a justification for his failure to apply for leave to appeal within the time prescribed by law. The applicant has also not elaborated on his assertions that he had difficulties seeking legal advice and that there was a good ground in his case.     

8.We turn next to consider the merits of the intended appeal.  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 set out two grounds of appeal:

(1)  The judges were wrong as a matter of law for not having applied the principle of irrationality to the decisions made by the Director of Immigration (“the Director”) on 23 June 2016.

(2)  The judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director who was required to give reason to justify his decision.

10.We are of the view that the proposed grounds do not constitute viable grounds for granting leave to appeal to the Court of Final Appeal.  Firstly, they are general unparticularised assertions. There is no explanation of what was the irrationality or procedural unfairness complained of.  Secondly, the applicant had unsuccessfully appealed the Director’s refusal to re-open his case to the Torture Claims Appeal Board (“the Board”).  The applicant’s intended judicial review was against the Board’s decision, not the Director’s decision.  Thirdly and importantly, the applicant has not identified any question of great general or public importance, as required by section 22(1)(b).       

11.The content of the applicant’s written submission is identical to the written submission he previously put in to support his application for leave to appeal out of time (see [17] of our judgment).  For reasons we gave at [20] of our judgment, the arguments have no merits.

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

13.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.