Re Sherpa Pemba

CAMP 147/2020

[2021] HKCA 1380

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 147 OF 2020

(ON AN INTENDED APPEAL FROM HCAL 1115/2017)

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Before:  Hon Barma JA and Au JA in Court

Date of Judgment: 24 September 2021

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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 21 May 2021, this court (Barma JA and Au JA) handed down a judgment dismissing the applicant’s application for extension of time to appeal against the decision of Campbell-Moffat J (“the judge”) on 16 November 2018 refusing to grant extension of time for applying for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) and an unidentified decision of the Director of Immigration.

2.The facts and issues in the application, 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 filed on 7 June 2021, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“1. The learned judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration…refusing my application for judicial review.

2. The learned judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision to the Director [unintelligible] the Director was required to give reason justifying the Decision.”

4.In the affirmation filed on 7 June 2021, the applicant deposed that he understands there is a good ground of appeal that was not necessarily considered at the stage of applying for court of appeal.  He is unrepresented and has no means to seek legal advice.

5.The applicant failed to comply with Practice Direction 2.1 and did not lodge a skeleton submission within time.  The applicant was therefore debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

6.Having considered the applicant’s Notice of Motion and affirmation, 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 the documents filed.

7.The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question 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.  Nor is any such question apparent to us from the matters he has raised.  

8.The applicant complained that this court failed to apply the principles of irrationality and procedural unfairness to the Director’s Decision.  However, as we have held in [16] of our judgment, in an appeal to this court it is necessary to identify errors made by the judge and a ground directed towards the decision of the Director is not a valid ground of appeal.

9.Further, both grounds are vague and lack particulars.  For these reasons, the grounds identified in the Notice of Motion are not in our view reasonably arguable before the Court of Final Appeal.

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

11.For these reasons, the Notice of Motion dated 7 June 2021 is dismissed.

The applicant acting in person