RE UMI LATIFAH

CACV 554/2018

[2020] HKCA 665

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 554 OF 2018

(ON APPEAL FROM HCAL NO. 799 OF 2017)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.  By a judgment dated 25 June 2019 ([2019] HKCA 655), the Court of Appeal dismissed the applicant’s appeal against the decision of Campbell Moffat J (“the Judge”) dated 12 November 2018 in HCAL 799/2017 refusing to grant leave to her to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board (“Board”) dismissing her petition/appeal from the decision of the Director of Immigration (“Director”) rejecting her non-refoulement claim.

2.  On 18 March 2020, the applicant filed a notice of motion seeking leave to appeal to the Court of Final Appeal against the judgment on the following grounds:

(1)  The judges were wrong as a matter of law for not having applied the principle of irrationality to the Director’s decision.

(2)  The Director and the Board wrongly assessed her case and the decisions were unreasonable and unfair. 

(3)  The right to life is protected under Article 28 of the Basic Law, Article 2 of the Hong Kong Bill of Rights Ordinance (Cap. 383) and in practice, by the criminal law.  The applicant should be protected from extrajudicial killings in her country.

(4)  The judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the Director’s decision.  The Director and the Board were required to give reasons justifying the decisions made.

(5)  Actual situation is different from that mentioned in the Country of origin information which were referred to by the officers.  The court prefers to ignore the overwhelming evidence of violence towards minorities. 

(6)  The judges did not apply the law properly.

3.  On 20 April 2020, the Registrar of Civil Appeals directed that the applicant lodge with the court her written submissions on or before 7 May 2020.  She failed to do so and only lodged her written submissions on 27 May 2020.  Although the delay of 20 days cannot be regarded as insignificant, we are prepared to excuse the delay and allow the written submissions to go in. 

4.  In her written submissions, the applicant quoted passages from ST v Director of Immigration[1] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  She further submitted that “high standards of fairness” applied to the determination of a non - refoulement claim and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility. Lastly, she referred to section 37ZT of the Immigration Ordinance (Cap. 115) which is about the late filing of notice of appeal to the Board. However, she did not explain and elaborate how the aforesaid cases and statutory provision were related to or would assist her case.

5.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on the papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

6.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484), such a notice of motion should have been filed within 28 days from the date of the judgment to be appealed from.  The applicant had substantially delayed the application for almost 8 months. 

7.  Under section 24(5), an extension of time would only be granted where very good grounds are shown, see Full Wisdom Holdings Limited v Traffic Stream Infrastructure Company Limited, CACV 266/2003, 27 July 2004; Wing Hang Bank Limited v Crystal Jet International Limited, CACV 255/2002, 9 March 2006 and Bowlstar (HK) Limited v Ho Kwai Po, CACV 156/2006, 10 July 2007.

8.  In the applicant’s supporting affirmation filed on 18 March 2020, she explained that she was detained by the Immigration Department at the material time and she was not aware of the procedural rules that caused the delay in her application.  She urged the court to grant leave to her to file the notice of motion out of time. 

9.  In our view, there is no good reason for the delay.  Though the applicant has been detained by the Immigration Department, if she was minded to proceed with the appeal, she should make the necessary enquiry, for example with the immigration officer, to find out the time limit for filing the notice of motion.  The matters deposed in the applicant’s affirmation did not provide a reasonable excuse for the substantial delay.

10.  More importantly, the applicant has no reasonably arguable ground of appeal.  The grounds of appeal set out in the notice of motion were vague and general and did not pinpoint any error of law or procedural unfairness or irregularities in the judgment.  Further, her claim for non - refoulement protection had not been assessed by the Director or the Board due to her failure to complete her non-refoulement claim form (“NCF”). The Board dismissed her petition/appeal as she had failed to provide sufficient evidence to explain that her failure to return a complete NCF was due to circumstances beyond her control.  As stated in [15] of our judgment, we agreed with the Judge’s conclusion that the decisions of the Director and the Board were not Wednesbury unreasonable and there were no errors of law nor procedural unfairness in their decisions.  In our judgment, none of the grounds stated in the notice of motion or the written submissions can constitute valid grounds of appeal to the Court of Final Appeal.

11.  For the reasons that we gave in our judgment of 25 June 2019, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion and written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

12.  Accordingly, we refuse to extend time for the applicant to seek leave to appeal to the Court of Final Appeal and dismiss her notice of motion accordingly.

[1]The correct citation should be ST v Betty Kwan.