RE SITI HAYANI

CACV 54/2022, [2023] HKCA 559

On Appeal From [2022] HKCA 677

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 54 OF 2022

(ON APPEAL FROM HCAL 1202 OF 2019)

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J U D G M E N T

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Hon Au JA (giving judgment of the court):

1.  On 28 June 2022, the applicant filed a Notice of Motion out of time to apply for leave to appeal to the Court of Final Appeal against the judgment of the Court (Au JA and Lisa Wong J) of 13 May 2022 (“the Judgment”) ([2022] HKCA 677). In the Judgment, the Court dismissed the applicant’s appeal against the decision of Deputy High Court Judge P Li dated 18 January 2022, refusing her application for leave to apply for judicial review ([2022] HKCFI 138).

2.  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.

3.  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.

4.  Further, pursuant to section 24(2) of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for the applicant to seek leave to appeal to the Court of Final Appeal against the Judgment fell on 10 June 2022.  Accordingly, the applicant was late for 18 days in taking out her application for leave to appeal to the Court of Final Appeal.

5.  Although 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 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.

6.  In her Notice of Motion, the applicant stated:

“I am would like to inform to the Court of Final Appeal. Director of Immigration and The Torture Claim Appeal Board has significantly relied on the source of news which is not officially recognized or it simply hearsay. They have also relied on some cases which are fairly outdated considering information has resulted in them making groundless speculations that it is safe for me to return back to Indonesia. Its towards to my life.” (sic)

7.  In her supporting affirmation, she only alleged:

“Affirmation for leave to apply time extension for my Notice of Motion. I did not aware of my deadline to file my Notice of Motion.” (sic)

8.  Pursuant to Practice Direction 2.1, the applicant lodged her written submissions on 12 July 2022.  In those submissions, she alleged that there had been a lack of language assistance and also a lack of sound judgment and fairness throughout her non-refoulement claim process.

9.  At the outset, it is noted that a delay of 18 days is substantial and ignorance of the deadline for filing her Notice of Motion is not a good reason for her substantial delay.

10.  More importantly, her intended application is wholly without substance.  The allegations made in her Notice of Motion and written submissions are all bare and vague allegations unsupported by any evidence. She did not identify any specific error in the Judgment with sufficient particulars.  Accordingly, her allegations are not viable grounds of appeal.  Furthermore, it is trite a non-refoulement claimant is not entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as she desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11].  The applicant was assisted by interpreters in her proceedings during the oral hearings before the Board, the Deputy Judge and this Court.  All of the Court documents filed by the applicant in this Court and the Court below were in English which demonstrated that she was proficient in the English language or had access to language assistance.  Accordingly, her complaints in relation to the lack of language assistance must fail and her intended appeal plainly has no merit.

11.  In any event, even taking her case at its highest, her allegations are fact‑specific and do not relate to any question of great general or public importance.

12.  The applicant has therefore 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.

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