RE KUSTANTI

CACV 527/2020

[2021] HKCA 660

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 527 OF 2020

(ON APPEAL FROM HCAL NO. 1861 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  By the order of Chu JA made on 16 March 2021, the applicant’s appeal was dismissed for failure to comply with an unless order made on 26 February 2021 (“Unless Order”). Instead of making an application for relief from the sanction imposed by the Unless Order, the applicant filed a notice of motion on 29 March 2021 to seek leave to appeal against the order of 16 March 2021.

2.  On 30 March 2021, the Registrar of Civil Appeals invited the applicant to consider applying for relief from sanction by issuing a summons before 12 April 2021 together with a supporting affirmation.  The Registrar of Civil Appeals further directed that if no application for relief from sanction was made by 12 April 2021, the Court would proceed on the basis that no such application would be made and would deal with the notice of motion accordingly.

3.  The applicant has not issued any summons to apply for relief from sanction.  In accordance with the abovementioned directions of the Registrar of Civil Appeals, we take it that the applicant does not wish to make an application for relief from sanction and will proceed to deal with the notice of motion. 

4.  Upon the applicant’s request, the Registrar of Civil Appeals has granted an extension of time for the lodging of written submission. Despite that, the applicant has not lodged any written submission to support her notice of motion.  In the circumstances, we would consider and determine the application on the basis of the materials before us. 

5.  We are satisfied that it is appropriate to deal with this application on the papers without an oral hearing, and have proceeded to do so.

6.  By a notice of appeal dated 29 September 2020, the applicant sought to appeal against the decision of Deputy High Court Judge Lung (“the Judge”) given on 7 August 2020 refusing to extend the time for her to apply for judicial review.  The intended judicial review is against the decision of the Non-refoulement Claims Petition Office/ Torture Claims Appeal Board (“the Board”) dated 14 February 2017 dismissing her appeal against the decisions of the Director of Immigration (“the Director”) dated 27 April 2015 and 13 April 2017 rejecting hers non-refoulement claim. 

7.  The applicant failed to comply with the requirement of Order 59 rule 5(1)(a) of the Rules of the High Court, Cap. 4A and did not lodge a copy of the sealed order dated 7 August 2020.  Despite directions given by the Registrar of Civil Appeals on 30 November 2020, the applicant failed to rectify the non-compliance and did not lodge a copy of the sealed order.    

8.  On 26 February 2021, having regard to the applicant’s default, Chu JA made the Unless Order which stipulated that:

“Unless by 4:30 pm on 15 March 2021 the applicant lodges with the Court a copy of the sealed order dated 7 August 2020, the appeal shall, without further notice, stand dismissed.”

9.  The applicant did not comply with the Unless Order. Consequently, the appeal was ordered to be dismissed on 16 March 2021.   

10.  As mentioned above, the applicant filed a notice of motion on 29 March 2021, in which she stated that: (i) she wished to appeal; (ii) she did not want to return to her country because her life would be in danger; (iii) her situation would be very bad and she would face hardship if she were to live in her country; and (iv) the Board has significantly relied on information from sources that were not officially recognised. 

11.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, 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.

12.  What was stated in the notice of motion does not constitute viable grounds for giving leave to appeal.  Firstly, it does not address the order dismissing the applicant’s appeal for non-compliance with the Unless Order, which is the subject matter of the intended appeal.  The applicant has not identified any error in the imposition of the Unless Order and/or the dismissal of her appeal upon her failure to comply with the Unless Order.  Secondly and critically, the applicant has not identified any question of great general or public importance that may be involved in her intended appeal to the Court of Final Appeal.

13.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).   

14.  Accordingly, we refuse the application for leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion.