Re Muthuchami Ajai Kumargosh

CACV 168/2020

[2021] HKCA 867

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 168 OF 2020

(ON APPEAL FROM HCAL NO 1631 OF 2018)

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Before:  Hon Cheung and Au JJA in Court

Date of Written Submissions: 11 March 2021

Date of Judgment: 16 June 2021

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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 2 March 2021, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Cheung and Au JJA) judgment of 31 December 2020 (“the Judgment”) [2020] HKCA 1072.  In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung dated 29 May 2020, refusing him leave to apply for judicial review.

2.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, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“HKCFAO”) provides that an appeal shall lie to the Court of Final Appeal (“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.

4.Further, pursuant to section 24(2) of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for filing the present application expired on 28 January 2021.  The applicant is therefore more than one month out of time.

5.As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the court has a discretion to extend time under section 24(5) of the HKCFAO only if good and sufficient grounds are shown by the applicants.  In deciding whether there are such good grounds, the court is entitled to take into account (a) the length of the delay; (b) the reasons for the delay; (c) the chances of the appeal succeeding if an extension of time is granted; and (d) the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq [2021] HKCA 83, per Lam VP at [4] and the authorities cited therein.

6.In his Notice of Motion, the applicant raised the following grounds of appeal:

“I would like to infomr the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL Information and my previous facts which were in favor while rejecting my claim. Acual life occur different situation then what is mentioned in COL Information. The Officer and cours prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.” [sic]

7.In his supporting affirmation, he explained that he did not receive the Judgment.  However, as the court record reveals, the applicant collected the Judgment in person on 31 December 2020.

8.In his written submissions of 11 March 2021 filed pursuant to the directions of the Registrar of Civil Appeals, the applicant complained that the decisions made by the Director of Immigration and Torture Claims Appeal Board were not fair.  He said that those decisions were not read to him and he did not understand them as he lacked language and legal assistance.  Further, he submitted that the decision makers and the courts failed to take into account the principle of procedure fairness and that he was not given the chance to be heard.

9.The applicant’s application for leave to appeal to CFA out of time has no merits at all.

10.First, a delay of more than a month is not insignificant in the context of a 28-day statutory time limit.  As mentioned, the applicant fails to provide cogent explanation for the delay.

11.Second, his intended appeal is totally without merits. Apart from bare and general assertions, the applicant fails to pinpoint any specific errors in the Judgment.  Further, the alleged lack of language and legal assistance was not advanced before this Court and would thus not be entertained: see Sorip Khan v Torture Claims Appeal Board & Anor [2019] HKCA 510 at [12]; Re Md Iqbal [2019] HKCA 912 at [13(3)]; Re Sudimah [2019] HKCA 1030 at [12(3)]; and Re Marshall Bill O [2019] HKCA 1031 at [13(3)].

12.In the premises, the applicant has not raised any viable grounds of appeal.

13.We also do not consider that there is any question of great general or public importance or which otherwise ought to be submitted to the CFA for determination.

14.For these reasons, it will be futile to extend time. We therefore refuse to grant leave to appeal to the CFA out of time, and dismiss the application.

The applicant acting in person