RE IRIN SUSANTI

CAMP 171/2021

[2022] HKCA 1255

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 171 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1731 OF 2018)

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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 28 June 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal out of time against this Court’s (Au and Chow JJA) judgment of 16 December 2021 (“the Judgment”)  ([2021] HKCA 1900). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 7 August 2020, by which the Deputy Judge refused to grant the applicant extension of time and dismissed her application for leave to apply for judicial review out of time ([2020] HKCFI 1876).

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 13 January 2022.  The applicant was therefore late for over five months in making her application for leave to appeal to the Court of Final Appeal.

5.  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.

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

“DIRECTOR OF IMMIGRATION AND TORTURE CLAIM APPEAL BOARD REJECTED MY CLAIM FOR NON-REFOULEMENT. THE HIGH COURT AND THE COURT OF APPEAL DISMISSED MY APPLICATION FOR LEAVE. I AM NOT TOALLY SATISFIED. I WANT TO GO TO THE COURT OF FINAL APPEAL.” (sic)

7.  In her supporting affirmation filed on 28 June 2022, the applicant only asked for permission from this Court to allow her to apply for leave to appeal to the Court of Final Appeal without giving any reason or explanation for her delay.

8.  Pursuant to Practice Direction 2.1, the applicant lodged her written submissions in support of her present application.  In those submissions, she only repeated the procedural history of her non-refoulement claim and that she was not satisfied with the decisions given by the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  and the Court as to her non-refoulement claim.  However, she gave no reason as to why she was not satisfied with those decisions or identify any error made by the Board, the Court below or this Court.  The applicant also alleged in her submissions that all of her friends who were asylum seekers were facing the same problem.  Yet, she did not specify what the alleged problem was.

9.  At the outset, it is noted that the applicant failed to provide any reason, let alone any good reason, for her very substantial delay of over five months in making her application for leave to appeal to the Court of Final Appeal.  More importantly, her intended appeal has no merit at all.  The matters raised in her Notice of Motion are all general and bare allegations without any specific particulars or explanation. She did not identify any specific error in the Judgment with particulars.  It is also unclear how her friends’ cases or problems have any relevance to her own case or the present application.  Clearly, her arguments do not constitute proper grounds of appeal.

10.  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.

11.  Accordingly, the applicant 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.

12.  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 filed on 28 June 2022 is dismissed.