RE LIMBU KUSUM

CACV 521/2021

[2022] HKCA 1372

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 521 OF 2021

(ON AN APPEAL FROM HCAL NO. 86 OF 2021)

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J U D G M E N T

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

1.  On 30 May 2022, this court handed down a judgment ([2022] HKCA 700) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 12 November 2021 refusing her application for leave to apply for judicial review.

2.  On 5 July 2022, the applicant filed a Notice of Motion together with an affirmation to apply for leave to appeal this court’s judgment to the Court of Final Appeal. She has also put in a written submission to support her application.

3.  Having considered the Notice of Motion and the written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Section 24(5) of the Ordinance further provides that the Court of Appeal may extend the time for the filing of the notice of motion.  In considering whether to extend the time, we will have regard to (i) the length of the delay; (ii) the reasons for the delay; (iii) the merits of the intended application; and (iv) the prejudice to the other parties if time was extended.  

6.  The applicant’s Notice of Motion is late by one week.  The applicant explained in her affirmation that she did not receive the judgment within the time for appeal.  She has however not elaborated on the circumstances leading to the late receipt of the judgment, which was mailed to her address on the day the judgment was handed down.  Nevertheless, as it is not a significant delay, we will focus on the merits of the application.

7.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance 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.

8.  The Notice of Motion states that: (i) there are some errors of law in the decision; (ii) the decision maker relied on country of origin information (“COI”) and facts that favour the rejection of the applicant’s claim. Actual life situation is different from what was stated in the COI; (iii) the decision makers ignored overwhelming evidence of violence committed towards the minorities; and (iv) the decision betrays a biased and formulaic approach indicating that there has been any fair assessment of the danger to the applicant’s life. 

9.  The written submission gave a background of the claim, and quoted extensively from provisions in the ICCPR, the Convention Against Torture, the Hong Kong Bill of Rights Ordinance, Cap. 383 and the Basic Law, as well as cases on the high standard of fairness and Wednesbury unreasonableness.  It submitted that the decision had the effect of finally disposing of the applicant’s claim, rendering her liable to be removed from Hong Kong; hence high standards of fairness were engaged and minimal standard of procedural fairness applied to the decision making process.  The submission further said that the case involves question of great general and public importance, the legal issues raised are complex and have not been adjudicated upon by any court.  There is however no indication of what these question and issues are.

10.  Despite the assertion in the written submission, neither the Notice of Motion nor the written submission has identified any question of great general and public importance, as required by section 22(1)(b) of the Ordinance, had been identified.  It has also not been shown how the provisions and legal propositions set out in the written submission relate to the applicant’s case and intended appeal.  We also do not see any basis for the “or otherwise” limb under section 22(1)(b). 

11.  As the statutory requirements for giving leave to appeal are therefore not met, it would be futile to extend the time for applying for leave to appeal. Accordingly, we refuse to extend the time and dismiss the Notice of Motion.