RE GHALE DHAN MATA

CACV 150/2021

[2022] HKCA 205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 150 OF 2021

(ON APPEAL FROM HCAL NO 735 of 2018)

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J U D G M E N T

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

1.  On 10 December 2021, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Au JA and Lisa Wong J)  judgment of 5 November 2021 (“the Judgment”)  ([2021] HKCA 1639). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  dated 25 March 2021 refusing the applicant’s application for leave to apply for judicial review ([2021] HKCFI 795).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final 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.

4.  Further, pursuant to section 24(2)  of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for filing the present application expired on 3 December 2021.  The applicant was therefore late for seven days with her application for leave to appeal to the CFA.

5.  As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the Court has a discretion to extend time under section 24(5)  of the HKCFAO only if good and sufficient grounds are shown by the applicant.  In deciding whether there are such good grounds, the Court is entitled to take into account (a)  the length of the delay; (b)  the reasons for the delay; (c)  the chances of the appeal succeeding if an extension of time is granted; and (d)  the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another [2021] HKCA 83 at [4] and the authorities cited therein.

6.  In her Notice of Motion, the applicant stated:

“I would like to infomr the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL Information and my previous facts which were in favor while rejecting my claim. Actual life occur different situation then what is mentioned in COL Information. The Officer and cours prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.” (sic)

7.  In her affirmation in support dated 10 December 2021, the applicant stated:

“The plaintiff seeks leave to file Notice of Motion out of time as the plaintiff did not receive the judgement within the time stipulated for appeal The Plaintiff now craves for leave that court be move out of time.” (sic)

8.  The applicant lodged her written submissions on 23 December 2021.  In those submissions, the applicant cited ST v Director of Immigration (sic)[2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 that high standards of fairness were required in the determination of a torture claim.  The applicant further contended that the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  ought to have considered matters such as country conditions of the applicant’s country of origin and that the Board failed to scrutinise the Director of Immigration’s (“the Director”)  decision.  She further cited The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243, and Michael John Treloar Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217 and contended that the decision maker was under a constitutional duty to act fairly.  It must however be noted that these are all general propositions and the applicant has failed to show specifically how they are relevant to her case.  More importantly, none of her submissions has identified any error in the Judgment.

9.  In our view, the applicant’s intended appeal has no merit at all.  The matters raised in her Notice of Motion, supporting affirmation and written submissions are all general and bare allegations without any specific particulars or explanation.  The applicant also failed to identify any specific error in the Judgment with particulars.  Clearly, they do not constitute proper grounds of appeal.

10.  In any event, the matters raised in her written submissions are wholly without merit.  In both the Director’s and the Board’s decisions refusing her non-refoulement claim, the Director and the Board had already given due consideration to the Country of Origin Information of her home country.  As stated at [20] of the Judgment, we do not see any error of law or procedure in the proceedings before the Board and there is no reasonably arguable basis to challenge the fairness of the process.

11.  Further, even taking the applicant’s submissions at their highest, her contentions are still fact-specific and do not relate to any question of great general or public importance.

12.  Accordingly, the applicant has also failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

13.  For these reasons, we refuse to grant extension of time for the applicant to apply for leave to appeal to the Court of Final Appeal.  Accordingly, the Notice of Motion filed on 10 December 2021 is dismissed.