RE AKTER MST SHIRIN

CACV 412/2019

[2020] HKCA 955

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 412 OF 2019

(ON APPEAL FROM HCAL NO. 183 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

1.1  This is the applicant’s notice of motion for leave to appeal to the Court of Final Appeal against the judgment of this Court (Cheung, Chu and Au JJA) handed down on 29 April 2020 ([2020] HKCA 217).  We dismissed her appeal against the decision of Deputy High Court Judge Josiah Lam on 3 September 2019 ([2019] HKCFI 2165) refusing leave to apply for judicial review concerning her non-refoulement claim.  The applicant filed her notice of motion on 1 June 2020 for leave to appeal to the Court of Final Appeal.  She was out of time for five days.

1.2  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals directed on 2 June 2020 that the notice of motion shall be determined on paper only without an oral hearing.  The applicant lodged her written submission on 14 August 2020. Having considered her submission, we consider it appropriate to determine this application on paper and will proceed to do so.

II.  The applicant’s grounds

2.  The applicant stated in the notice of motion that :

1)  It is not true that her application does not have substance;

2)  She did not complain about the poor performance of her duty lawyer because she feared that ‘he will be picked out for misappropriating by the adjudicator’; and

3)  She did not have enough time to address the bundle.

2.2  What the applicant stated in her supporting affirmations and written submission may be summarized as follows :

1)  In her first affirmation, she stated that she only received the Court of Appeal’s judgment of 29 April 2020 on 27 May 2020, and it took her a few days to take out an application because of her language problem;

2)  In her second affirmation, she stated that the Court was wrong to hold there was no state acquiescence, and that the Court did not find out details of the situation in Bangladesh; and

3)  Her nine-page written submission cited legal authorities and principles that are used in non-refoulement applications without giving particulars on how they applied to her case.

III.  Analysis

3.1  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484), an application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Section 24(5) further provides that the Court of Appeal may, if it considers appropriate, extend the time for making an application for leave to appeal.

3.2  Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of 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.

3.3  In the present application, the applicant was late for a few days.  The relevant factors in considering whether an extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at paragraph 1.4).

3.4  The applicant explained in her affirmation that her delay was due to her language problem, and that she only received the Court of Appeal’s judgment on 27 May 2020, the last day for her to take out an application for leave to appeal to the Court of Final Appeal.  No details were provided as to how it was that she only received the Court of Appeal’s judgment 28 days later.  

3.5  In any event, the applicant has not shown any merits in her intended application for leave to appeal to the Court of Final Appeal.  Her grounds of appeal are bare assertions.  She has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b).  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b). 

3.6  For the above reasons, we decline to grant an extension of time to the applicant to file an application for leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 1 June 2020.