Re Sathaiah Subbaiah

CACV 200/2021

[2022] HKCA 1462

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 200 OF 2021

(ON APPEAL FROM HCAL NO. 1242 OF 2018)

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D E C I S I O N

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

1.On 25 October 2021, this Court handed down a judgment ([2021] HKCA 1570) dismissing the applicant’s application to appeal an order of Deputy High Court Judge Bruno Chan given on 22 April 2021 refusing his application for leave to apply for judicial review in respect of his non‑refoulement claim.

2.On 3 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 also lodged written submission out of time.

3.Having considered the applicant’s documents, 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 (‘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 over five months.  The delay is serious.  The applicant explained in his affirmation that he was ‘unaware’ of the ‘14‑days time limit and was unrepresented’.  He stated that he was detained at Castle Peak Immigration Centre.  Firstly, the applicant is misconceived with a 14‑day time limit as against a 28‑day time limit.  Secondly, according to Court record, our judgment was sent to the applicant’s last known address and it is the duty of the applicant to keep the Court updated on his most up to date whereabouts.  The applicant’s reasons for the delay are not acceptable.

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 following in summary :

1)  The Judges were wrong not having applied the principle of procedural unfairness;

2)  The Judges were wrong not having applied the principle of irrationality;

3)  The decision maker relied on COL information which was favour on rejecting his claim;

4)  Courts ignore evidence of violence towards minorities;

5)  The Judge did not apply the law properly;

6)  The applicant will be killed or harmed if he returns home.

9.The applicant in his written submissions cited general principles used in non‑refoulement cases without identifying how they relate to the particulars of his case.

10.We are of the view that the grounds and arguments put forward by the applicant are devoid of merit.  They 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.

10.  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, 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