Re Mendes Nelson

CAMP 541/2021

[2022] HKCA 1160

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MIXCELLANEOUS PROCEEDINGS NO. 541 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1562 OF 2018)

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Before:  Hon Chu and Barma JJA in Court

Date of Judgment: 12 August 2022

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J U D G M E N T

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

1.On 1 April 2022, this court handed down a judgment ([2022] HKCA 467) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Lung given on 4 August 2020 refusing to grant him leave to apply for judicial review.

2.On 27 June 2022, the applicant filed a Notice of Motion together with an affidavit to apply for leave to appeal this court’s judgment to the Court of Final Appeal. He has also put in a written submission to support his application.

3.Having considered the Notice of Motion, the affidavit and the 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 have 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.  In considering whether to extend the time, we will have regard to (i) the length of the delay; (ii) the reasons for the delay; (iii) the merits of the intended application; and (iv) the prejudice to the other parties if time was extended.  

6.The applicant’s Notice of Motion is late by nearly two months, which is a significant delay.  He explained in the affidavit that he did not receive the judgment within the time stipulated for making the application. We note from the court’s record that the judgment was on 1 April 2022 mailed to the applicant at the address stated in his summons and affidavit dated 30 November 2021.  The address is, however, slightly different from the address stated in the Notice of Motion and affidavit filed on 27 June 2022.  The former stated “Room A, 5/F.” whereas the latter stated “Room 5, 5/F.”  It is possible that this might have caused some delay in the judgment reaching the applicant, although it must be pointed out that it is a litigant’s duty to provide to the court an accurate address for receiving court documents.  That said, what is most important is the merits of the intended application, to which we now turn.

7.As to the merits of the application, 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.

8.The Notice of Motion stated that: (i) there are some errors of law in the decision; (ii) the decision maker relied on country of origin information (“COI”) and facts that favour the rejection of the applicant’s claim. Actual life situation is different from what was stated in the COI; (iii) the decision makers ignored overwhelming evidence of violence committed towards the minorities; and (iv) the decision betrayed a biased and formulaic approach indicating that there was unlikely any fair assessment of the danger to the applicant’s life.  

9.The written submission quoted extensively from cases on the high standard of fairness and Wednesbury unreasonableness.  It submitted that the Torture Claim Appeals Board (“the Board”) acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  It further made reference to section 37ZT of the Immigration Ordinance, Cap. 115 dealing with later filing of notice of appeal to the Board.  This is clearly irrelevant as there was no delay in in the appeal to the Board.   

10.All the matters put forward by the applicant relate solely to his claim.  No question of great general or public importance, as required by section 22(1)(b) of the Ordinance, had been identified.  Nor do we see any basis for the “or otherwise” limb under section 22(1)(b). 

11.As the statutory requirements for giving leave to appeal are not met, it would be futile to extend the time for making the application.  Accordingly, we dismiss the Notice of Motion.

The applicant, unrepresented, acting in person.