RE RUSTINI

CAMP 562/2021

[2023] HKCA 160

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 562 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1298 OF 2018)

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D E C I S I O N

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

I. Leave to appeal to the Court of Final Appeal

1.  On 6 May 2022, this Court (Cheung and Au JJA)  handed down a decision ([2022] HKCA 646)  dismissing the applicant’s application to extend time to appeal against the decision of Deputy High Court Judge P. Li refusing to grant leave to the applicant to apply for judicial review.

2.  On 20 June 2022, the applicant filed a Notice of Motion together with a supporting affirmation, seeking leave to appeal against our decision to the Court of Final Appeal.  The applicant filed her written submissions on 30 June 2022.

3.  In her Notice of Motion, the applicant claimed that she disagreed with the decisions of the Director of Immigration and of the Torture Claims Appeal Board, that there was no investigation in her case, that there was ‘some error in law’ in her decision, and that her life was still in danger if she were to return to her home country Indonesia.

4.  In her supporting affirmation, the applicant merely asked for time extension to file her Notice of Motion because ‘I did not aware [sic]’.

5.  In her written submissions, the applicant complained that (1) there was no interpretation assistance provided to her in relation to her BOR 2 risk claim and (2) the non-refoulement claim process lacks sound judgment and fairness.  She did not provide any particulars or elaborations in relation to the said complaints.

6.  Having considered the applicant’s Notice of Motion, supporting affirmation and written submissions, we see no reason to depart from the usual practice of determining applications for leave to appeal (out of time)  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.

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

II.  Legal principles

8.  Section 24(2)  of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘HKCFAO’)  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 / decision to be appealed from.  Section 24(5)  further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

9.  The applicant’s present application is out of time by over two weeks.  She has failed to provide any satisfactory explanation for the delay.  Nevertheless, we shall focus on the merits of the intended appeal.

10.  Under section 22(1)(b)  of the HKCFAO, leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

III.  Our view

11.  The matters stated by the applicant in her Notice of Motion, supporting affirmation and written submissions do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b)  of the HKCFAO.  Nor is there any such question apparent to us from the matters she has raised in his document.

12.  We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

IV.  Disposition

13.  As the statutory requirements for giving leave to appeal are not met, the intended appeal has no merit and there is no basis for us to extend the time for the filing of the Notice of Motion.  Accordingly, we dismiss the Notice of Motion.