RE SERASINGHE ARACHCHIGE MALANIE

CAMP 104/2022

[2023] HKCA 428

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 104 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1356 OF 2018)

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DECISION

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Hon Cheung JA (giving the Decision of the Court)  :

1.  On 17 October 2022, this Court handed down decision ([2022] HKCA 1533)  dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge P Li given on 29 November 2021 refusing her application for leave to apply for judicial review in respect of his non-refoulement claim.

2.  On 21 October 2022, the applicant filed a notice of motion applying for leave to appeal this Court’s judgment to the Court of Final Appeal.  The applicant has not lodged a written submission by the stipulated deadline as set out by the Registrar of Civil Appeals.

3.  Having considered the applicant’s notice of motion, 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 decision.  We will not repeat them.

5.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’)  (Cap. 484)  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.

5.  The grounds of appeal stated in the notice of motion is as follows :

‘ Respectfully upon reading the Order by the Honourable Justice that my appeal for leave to apply for Judicial Review be refused and the Summons be dismissed I would like to appeal or Your Honour’s court again that I don’t want to return back to my country because my life is still in Danger in my Country. I will face hardship if I return back to my Country. I believe that the Justice reached the Decision wrongly in assessing her non-refoulement claims. I believe that these decision were not reasonable and fair. Indeed, the right to life is protected under Article 28 of the Basic Law and Articles 2 of the Bill of Rights Ordinance. In Practice, the rights to life is mainly protected by the Criminal Law and it must be protected from extrajudicial killings such as I believes that the Justice failed to give her sufficient time and chance to arrange relevant evidence.’

6.  We are of the view that the grounds and arguments put forward by the applicant do not constitute viable grounds for giving leave to appeal.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b)  of the HKCFAO.

7.  Nor do we see any basis for the ‘or otherwise’ limb under section 22(1)(b).

8.  As the statutory requirements for giving leave to appeal are not met, we, accordingly, dismiss the notice of motion.