RE MILAH

CAMP 245/2020

[2022] HKCA 1435

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 245 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1511 OF 2018)

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JUDGMENT

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

1.  This court handed down judgment on 14 March 2022 ([2022] HKCA 375) dismissing the applicant’s application to extend time to appeal against an order of DHCJ Bruno Chan given on 8 July 2020 refusing to grant leave to apply for judicial review in respect of her non‑refoulement claim.

2.  The facts and issues in the application before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

3.  On 21 April 2022, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal. However, it was out of time, as s.24(2) of Hong Kong Court of Final Appeal Ordinance (“HKCFAO”) Cap. 484 stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from. The last day for filing the Notice of Motion expired on 11 April 2022. That was the last day of the High Court’s pandemic general adjournment period, so she should have filed the Notice of Motion on 12 April 2022.

4.  However, under s.24(5) and s.24(6) of the HKCFAO, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period. In the exercise of our discretion whether or not to extend the appeal period, we should consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party.

5.  In the present case, the applicant was late by about a week. She did not explain her delay in her Notice of Motion or supporting affirmation.

6.  Moreover, the applicant has not shown any merits in her intended application for leave to appeal to the Court of Final Appeal. She only said in the Notice of Motion:

“The High Court and the Court of Appeal dismissed my leave to apply for judicial review but I wish the Court of Final Appeal will consider my leave to apply for judicial review.”

7.  In compliance with the directions of the Registrar of Civil Appeals given on 21 April 2022, the applicant lodged her written submissions in support of the Notice of Motion on 5 May 2022. This Notice of Motion is determined on paper without an oral hearing, which we consider appropriate.

8.  In her written submissions, she said that she cannot go back to Indonesia as her husband would harm or even kill her upon her return. Further, the Indonesian government and the police would not protect her and she has no power to fight her husband. She urged this Court to grant her leave to appeal to the Court of Final Appeal.

9.  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.

10.  Having regard to the judgment of this court, the applicant’s intended appeal has no merit at all. No question of great general or public importance has been identified as required by s.22(1)(b) of the HKCFAO.

11.  Nor do we see any basis for leave under the “or otherwise” limb under s.22(1)(b).

12.  By reason of the above, the Notice of Motion filed on 21 April 2022 is dismissed.