Re Mudassar Ijaz Alias Muhammad Afzal

CAMP 207/2020

[2022] HKCA 1452

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 207 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 322 OF 2018)

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Before:  Hon Yuen and Chow JJA in Court

Date of Judgment:  30 September 2022

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J U D G M E N T

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

1.This court handed down judgment on 14 March 2022 ([2022] HKCA 373) dismissing the applicant’s application to extend time to appeal against an order of DHCJ Bruno Chan given on 8 October 2019 refusing to grant leave to apply for judicial review in respect of his non‑refoulement claim.

2.The facts and issues in the application before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

3.On 11 May 2022, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal. However, it was out of time, as s.24(2) of Hong Kong Court of Final Appeal Ordinance (“HKCFAO”) Cap. 484 stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from. The last day for filing the Notice of Motion expired on 11 April 2022. That was the last day of the High Court pandemic general adjournment period, so he should have filed it the following day, 12 April 2022.

4.However, under s.24(5) and s.24(6) of the HKCFAO, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period. In the exercise of our discretion whether or not to extend the appeal period, we should consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party.

5.In the present case, the applicant was late by 1 month which is substantial. He did not explain his delay in his Notice of Motion or supporting affirmation.

6.Moreover, the applicant has not shown any merits in his intended application for leave to appeal to the Court of Final Appeal. He advanced the following in the Notice of Motion:

“With due respect and humble submission I beg you that I am not agree with the decision of the court, because if I return back to my county I will be killed by my enemy, but the Torture Claims Appeal Board and the Director of Immigration did not scrutinize my claim properly in my home country. I am not satisfy with the decision of the Summons of Appeal. This decision made me liable to return back to my home country where my life is in risk.”

7.Pursuant to the directions of the Registrar of Civil Appeals made on 11 May 2022, the applicant should lodge his written submissions in support of the Notice of Motion on or before 25 May 2022. He failed to do so. The Registrar further directed that in the event the applicant fails to lodge his written submissions, he will be deemed to have abandoned his right to rely on written submissions and the matter will be considered by the Court of Appeal based on the available materials. This Notice of Motion is therefore determined on paper without an oral hearing, which we consider appropriate.

8.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.

9.Having regard to the judgment of this court, the applicant’s intended appeal has no merit at all. No question of great general or public importance has been identified as required by s.22(1)(b) of the HKCFAO.

10.Nor do we see any basis for leave under the “or otherwise” limb under s.22(1)(b).

11.By reason of the above, the Notice of Motion filed on 11 May 2022 is dismissed.

The applicant, unrepresented, acting in person