RE DELA LUNA MERLE LUARCA

CAMP 463/2021

[2022] HKCA 818

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 463 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1824 OF 2018)

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J U D G M E N T

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

1.  On 23 December 2021, this court handed down judgment ([2021] HKCA 1954) dismissing the applicant’s application to extend time to appeal the decision of Deputy High Court Judge Lung given on 10 July 2020 refusing her application for leave to apply for judicial review in respect of her non‑refoulement claim.

2.  On 27 April 2022, the applicant filed a Notice of Motion together with an affirmation to apply for leave to appeal this court’s judgment to the Court of Final Appeal. The applicant has also lodged a written submission on 12 May 2022.

3.  Having considered the applicant’s Notice of Motion, affirmation and written submission, 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 judgment. We will not repeat them.

5.  The applicant’s Notice of Motion is out of time, as section 24(2) of the Hong Kong Court of Final Appeal Ordinance Cap. 484 stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from. The deadline for filing the Notice of Motion expired on 20 January 2022.

6.  Under sections 24(5) and 24(6) of the Hong Kong Court of Final Appeal Ordinance, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period. In the exercise of our discretion whether or not to extend the appeal period, we would consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party.

7.  In the present case, the applicant’s Notice of Motion is late by more than three months, which is substantial delay. The applicant apologised for the delay in her affirmation but provided no explanation for it.

8.  As to the merits of the intended appeal, section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance 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.

9.  The Notice of Motion only stated that the applicant wished to appeal our judgment, but did not set out any ground in support of the application.

10.  The written submission stated that the applicant’s life is under threat in her home country, the thought of her enemy petrifies her and there is no way she can go back even though she wants to do so. It is also said that the applicant wants to go to the Court of Final Appeal for herself and for all asylum seekers as they all share the same problem.

11.  We are of the view that the matters stated in the written submission 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 Ordinance.

12.  Nor do we see any basis for the “or otherwise” limb under section 22(1)(b).

13.  As the statutory requirements for giving leave to appeal are not met, it would be futile to extend the time to apply for leave to appeal. Accordingly, we refuse to extend the time for making the application and dismiss the Notice of Motion.