Re Ajit Biswas

CACV 227/2021

[2022] HKCA 1048

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 227 OF 2021

(ON APPEAL FROM HCAL 1550 OF 2018)

________________________

________________________

Before:  Hon Au and Chow JJA in Court

Date of Judgment:  22 July 2022

________________________

J U D G M E N T

________________________

Hon Au JA (giving judgment of the court):

1.On 23 May 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal out of time against this Court’s (Au and Chow JJA)  judgment of 10 March 2022 (“the Judgment”)  ([2022] HKCA 358). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  dated 28 April 2021, by which the Deputy Judge refused his application for leave to apply for judicial review ([2021] HKCFI 1176).

2.The facts and issues in the appeal, as well as this 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 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal 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.

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 7 April 2022.  The applicant was therefore over one month late with his application for leave to appeal to the Court of Final Appeal.

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 applicant: see Re Imran Muhammad [2021] HKCA 482 at [9] and the authorities cited therein.  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 & Another [2021] HKCA 83 at [4] and the authorities cited therein.

6.In his Notice of Motion, the applicant stated:

“THE HIGH COURT AND THE COURT OF APPEAL DISMISSED MY LEAVE TO APPLY FOR JUDICIAL REVIEW BUT I WISH THE COURT OF FINAL APPEAL WILL CONSIDER MY LEAVE TO APPLY FOR JUDICIAL REVIEW.” (sic)

7.In his supporting affirmation filed on 23 May 2022, the applicant stated:

“APPLY FOR NOTICE OF MOTION BUT OUT OF SCHEDULED TIME. PLEASE ACCEPT MY APPLY.” (sic)

8.Pursuant to Practice Direction 2.1, the applicant lodged written submissions on 6 June 2022. In those submissions, he repeated the factual background of his non-refoulement claim and asserted that he wanted to go to the Court of Final Appeal “for all his friends” and “for the great interest of all his friends”.  However, he gave no elaboration or particulars as to what the asserted “great interest” was.

9.At the outset, we consider the applicant’s delay of over one month as substantial.  He failed to provide any reason, let alone good and sufficient ground, for his delay in making his application for leave to appeal to the Court of Final Appeal.

10.More importantly, his intended appeal has no merit.  The matters raised in his Notice of Motion are all general and bare allegations without any specific particulars or explanation.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  The applicant has also failed to identify any specific error in the Judgment with particulars.  His assertion that he wanted to appeal to the Court of Final Appeal for the “great interest” of all his friends was bare, vague and clearly untenable.  Clearly, his arguments do not constitute proper grounds of appeal.

11.In any event, even taking his case at its highest, his allegations concerning his non-refoulement claim are fact-specific and do not relate to any question of great general or public importance.

12.Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

13.For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant him extension of time to pursue a hopeless appeal. Accordingly, the Notice of Motion filed on 23 May 2022 is dismissed.

The applicant acting in person