Re Hussain Khalid

CACV 476/2021

[2022] HKCA 1582

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 476 OF 2021

(ON APPEAL FROM HCAL NO. 2897 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 14 April 2022, this Court handed down judgment ([2022] HKCA 523)  dismissing the applicant’s application to appeal an order of Deputy High Court Judge P Li given on 4 October 2021 refusing his application for leave to apply for judicial review in respect of his non-refoulement claim.

2.On 17 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 within 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 five days.  The applicant did not explain in the supporting affirmation his delay, but simply said that the notice of motion was out of time.

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 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.’

9.The applicant’s written submissions complained of fears for his life, the applicant’s own country having poor law and order, the tribunals and courts in Hong Kong had dismissed his claim, and asylum seekers in Hong Kong having similar problems like that of the applicant.  He wished to go to the Court of Final Appeal on behalf of the other asylum seekers.

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.

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