Re Javed Umair

CAMP 18/2022

[2022] HKCA 1438

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 18 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2876 OF 2018)

__________________

__________________

Before :  Hon Cheung and Au JJA in Court

Date of Judgment :  28 September 2022

__________________

D E C I S I O N

__________________

Hon Cheung JA (giving the Decision of the Court) :

1.On 11 April 2022, this Court handed down a decision ([2022] HKCA 496) dismissing the applicant’s renewed application to extend time to appeal an order of Deputy High Court Judge K W Lung given on 6 August 2020 refusing his application for leave to apply for judicial review in respect of his non‑refoulement claim.

2.On 23 May 2022, the applicant filed a notice of motion and affirmation applying for leave to appeal this Court’s order to the Court of Final Appeal out of time. The applicant lodged written submissions out of time by one day.

3.Having considered the applicant’s notice of motion, affirmation and written submissions, 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 decision. We will not repeat them.

5.Section 24(2) of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’) (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) further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

6.The applicant’s present application is out of time by around 13 days. The applicant did not explain in the supporting affirmation his delay, but simply said that he received the judgment late in his mail box.

7.As to the merit of the intended appeal, section 22(1)(b) of the HKCFAO 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:

‘ The High Court dismissed my leave to apply for judicial review which judicial review I had made against the torture claims appeal board and director of immigration after dismissal from the high court I came to the court of appeal The Court of appeal to dismissed my application Now I want to go to the court of final appeal.’

9.In the applicant’s written submissions, he stated that his life was threatened. He stated that decision makers have rejected his claims. He stated that judges did not consider his country conditions. He stated that there are many errors in the Judges’ decision. He stated that he wants to apply for leave on behalf of all asylum seekers.

10.We are of the view that the grounds and arguments put forward by the applicant do not constitute viable grounds for giving leave to appeal. Importantly, no question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

11.Nor do we see any basis for the ‘or otherwise’ limb under section 22(1)(b).

12.As the statutory requirements for giving leave to appeal are not met, the intended appeal has no merit and there is no basis for us to extend the time for the filing of the notice of motion. Accordingly, we dismiss the notice of motion.

The applicant, unrepresented, acting in person