Re Khan Ajmal

CAMP 246/2020

[2023] HKCA 240

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 246 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 112 OF 2018)

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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 376) dismissing the applicant’s application to extend time to appeal against an order of Campbell-Moffat J given on 16 November 2018 in which she refused the applicant’s application for 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 27 July 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 section 24(2) of the 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 which was the last day of the court’s general adjournment period by reason of the pandemic.  He should therefore have filed the Notice of Motion the following day, 12 April 2022.

4.However, under sections 24(5) and 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 more than 3 months which is substantial.  No reasons for the delay were given in the Notice of Motion or in his supporting affirmation.

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

“1. Assessed my non-refoulement claim, the TCAB and Director did not consider my fear properly that I would face serious risk upon refoulement to my country of origin.

2. The honourable Judge refused my leave application for extension of time, that I was late filing my Notice of Appeal. I wasn’t received the Decision in my Address, and don’t have idea when my JR was refused so that I was late to file.

3. As a lay person, I can’t make my appeal on time, and I was explained my reasoning in my summons, stuati (sic) would request to consider my Motion Application.”

7.In compliance with the directions of the Registrar of Civil Appeals given on 27 July 2022, the applicant lodged his written submissions on 9 August 2022.  This Notice of Motion is determined on paper without an oral hearing, which we consider appropriate.

8.In his written submissions, he said that even though he had explained his unintentional delay in taking out his application for an extension of time to appeal against the Judge’s decision, his application was refused by this court.  He urged this court to grant him leave to go to the Court of Final Appeal.  He further complained that the Director of Immigration and the Torture Claims Appeal Board failed to adhere to high standards of fairness by making insufficient enquiries into the country of origin conditions in relation to his non-refoulement claim.

9.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.

10.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 section 22(1)(b) of the HKCFAO.     

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

12.By reason of the above, the Notice of Motion filed on 27 July 2022 is dismissed.

The applicant, unrepresented, acting in person