Re Sandeep

CAMP 118/2020

[2023] HKCA 58

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 118 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 51 OF 2018)

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Before:  Hon Au and Chow JJA in Court

Date of Judgment:  13 January 2023

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J U D G M E N T

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

1.On 17 October 2022, the applicant filed a Notice of Motion together with a supporting affirmation to apply for leave to appeal to the Court of Final Appeal out of time against this Court’s judgment of 10 August 2021 (“the Judgment”)  ([2021] HKCA 1143).  In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  dated 10 May 2019, refusing his application for leave to apply for judicial review (“the Leave Decision”)  ([2019] HKCFI 1235).

2.By a letter dated 21 December 2022, which was received by the Court on 28 December 2022, the applicant requested to withdraw the Notice of Motion as the problem in his country was resolved and he wanted to go back to his home country as soon as possible.

3.On the basis of his said request to withdraw his application for leave to appeal to the Court of Final Appeal, we dismiss the Notice of Motion.  In any event, his intended application fails for the lack of merit, which we will explain further below.

4.The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

5.Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal 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.

6.Pursuant to section 24(2)  of the HKCFAO, an appellant has 28 days from the date of the Judgment to seek leave to appeal to the Court of Final Appeal.  In the present case, taking into account the Court’s summer vacation in August, the deadline for the applicant to seek leave to appeal against the Judgment fell on 28 September 2021.  Accordingly, the applicant was over one year late in taking out his application for leave to appeal to the Court of Final Appeal.

7.As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the Court has a discretion to extend time under section 24(5)  of the HKCFAO only if good and sufficient grounds are shown by the applicant: see Re Imran Muhammad [2021] HKCA 482 at [9] and the authorities cited therein.  In deciding whether there are such good grounds, the Court is entitled to take into account (a)  the length of the delay; (b)  the reasons for the delay; (c)  the chances of the appeal succeeding if an extension of time is granted; and (d)  the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another [2021] HKCA 83 at [4] and the authorities cited therein.

8.In his Notice of Motion, the applicant stated:

“1. The learned judges were wrong as a matter of Law for not having applied the principle of procedural unfairness to the decision of the director was required to give reasons justifying the decision.

2. The learned Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration refusing my application for Judicial Review.

3. There is some error in law in my decision. The decision maker just relied on COL information any my previous facts, which were favor on rejecting my claim.

4. Actual life occur situation then mentioned COL information. Officer and courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining.

5. The Judge did not apply the law properly & Procedural unfairness.

6. I further want to explain that my life is in danger in my country. I would be killed or harmed if I return back to my country.” (sic)

9.In his supporting affirmation, the applicant stated:

“I do solemnly and sincerely affirm that the contents before me are true, nothing but the truth. On around September 2022, I get to know about the judgment dated 10^th day of August 2021. As I am still serving sentence at the Hei Ling Chau Prison that’s why I get very late information about the Judgment. Please accept my sincere apology for late appeal by understanding my current situation and accept my fresh application for Notice of Motion for the leave to apply to the Court of Final Appeal.” (sic)

10.Contrary to Practice Direction 2.1, the applicant did not lodge any written submissions.

11.At the outset, the applicant’s delay of over one year is very substantial and he failed to provide any good reason or evidence in support for his delay.  Although the applicant claimed to be currently serving his prison sentence at the Hei Ling Chau Prison, he failed to give any explanation as to why he failed to receive the Judgment over a year ago in August 2021.  In any event, as noted at [17] of the Judgment, it is the duty of a litigant to give the Court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant: Said Umair v Torture Claims Appeal Board [2018] HKCA 82 at [9].

12.More importantly, his allegations are wholly without substance.  The matters raised in his Notice of Motion are all vague and bare allegations without specific particulars or evidence in support.  More importantly, nowhere in his Notice of Motion or supporting affirmation did he identify any error with specific particulars in the Judgment.  General assertions of his fear if refouled do not constitute proper grounds of appeal.  It is also well-established that the assessment of evidence, Country of Origin Information and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers and the applicant had failed to demonstrate with specific particulars any error of law or procedural unfairness or irrationality in the decision of the Board to justify any intervention by the Court.  As such, there is simply no viable ground of appeal and his intended appeal must fail.

13.In any event, the applicant’s contentions are fact-specific and do not relate to any question of great general or public importance.

14.Accordingly, he has failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

15.For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant him extension of time to pursue a hopeless appeal.  Accordingly, the Notice of Motion filed is dismissed.

The applicant acting in person