RE SALBIYAH

CAMP 130/2021

[2022] HKCA 477

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 130 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 748 OF 2018)

_______________

_______________

_______________

J U D G M E N T

_______________

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

1.  On 4 January 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against the judgment of this Court (Cheung and Au JJA) dated 24 November 2021 (“the Judgment”) ([2021] HKCA 1742). In the Judgment, we dismissed the applicant’s application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 7 September 2020, in which the Deputy Judge refused to grant extension of time to the applicant and dismissed her application for leave to apply for judicial review ([2020] HKCFI 2190) (“the Leave Decision”).

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 filing the Notice of Motion ended on 22 December 2021. The applicant was therefore late for 13 days with 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. 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 would like to inform Court of Final Appeal. I am strongly opposed the decision made by the authorities. There is some error in law maker authorities and court as well. They are relied on web information and my previous facts while were favor to reject my claim. Its towards to my life still danger in my home land in Indonesia.” (sic)

7.  In her affirmation in support filed on 4 January 2022, she only stated that she was not aware of the time limit to file her Notice of Motion.

8.  Pursuant to the directions of the Registrar of Civil Appeal made on 4 January 2022, the applicant lodged her written submissions on 18 January 2022. In her written submissions, she claimed that her case had not been determined fairly by the Director of Immigration (“the Director”) and the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”). She alleged that she was deprived of the right to make full grounds of appeal given that the Court would not accept grounds written in her own language and that the lack of assistance provided to her was an error of law or procedure.

9.  As a start, although the applicant contended that she did not receive the Judgment, she gave no specific particulars or evidence in support of her contention. The Court record showed that the Judgment as well as the sealed Court order were posted to her last known address, which was the same address as provided in her Notice of Motion. The Judgment and sealed Court order were not returned as undelivered. As such, we do not accept her reason for delay in taking out this application.

10.  More importantly, the applicant’s intended appeal has no substance. None of the matters raised in her Notice of Motion or supporting affirmation has identified any specific error in the Judgment. General assertions of her fear to return to her home country simply do not constitute viable grounds of appeal. The matters raised in her Notice of Motion are all general and bare allegations unsupported by specific particulars or evidence. Clearly, they do not constitute proper grounds of appeal.

11.  As to the allegations raised in her written submissions regarding the lack of language and legal assistance, we had already considered and dealt with those arguments in the Judgment at [19] - [21] and the applicant did not identify any error in the Judgment with specific particulars. As such, her arguments are not viable grounds of appeal.

12.  In any event, the applicant’s contentions are also fact-specific and do not relate to any question of great general or public importance.

13.  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. It would be futile to extend time for the applicant to pursue a hopeless appeal.

14.  For these reasons, we refuse to grant the applicant extension of time for leave to appeal to the Court of Final Appeal and the Notice of Motion filed on 4 January 2022 is dismissed.