RE NAINAKALA BANEM LIMBU

CAMP 99/2020

[2021] HKCA 1410

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 99 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 942 OF 2018)

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J U D G M E N T

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

1.  This court (Hon Yuen and Barma JJA)  handed down judgment on 14 January 2021 ([2021] HKCA 52)  (“the Judgment”)  dismissing the applicant’s application to extend time to appeal against an order of DHCJ K.W. Lung (“the Judge”)  given on 8 March 2019 refusing to give the applicant leave to apply for judicial review in respect of his non-refoulement claim (“the 2019 CFI Decision”).

2.  On 27 December 2019, the applicant had filed a summons before the Court of First Instance for an extension of time to appeal the 2019 CFI Decision, which the Judge dismissed on 2 July 2020 (“the 2020 CFI Decision”). 

3.  On 14 July 2020, the applicant filed a summons in CAMP 99/2020 before this court applying for an extension of time to appeal against the 2019 CFI Decision.  For reasons set out in the Judgment, we dismissed the applicant’s summons. 

4.  On 17 February 2021, the applicant filed a Notice of Motion for leave to appeal the Judgment to the Court of Final Appeal. However, it was out of time, as s.24(2)  of Hong Kong Court of Final Appeal Ordinance (“HKCFAO”)  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 last day for filing the Notice of Motion expired on 11 February 2021. 

5.  However, under s.24(5)  and s.24(6)  of the HKCFAO, 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 should 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. 

6.  In the present case, the applicant was late by 6 days.  In the applicant’s supporting affirmation filed on 17 February 2021, she explained that she was not aware of the procedural rules as a lay person and she did not receive the letter dated 14 January 2021 on time due to an unknown reason.  We noted from the court file that the Judgment was posted on 14 January 2021 to the applicant’s address which is the same as that stated in the Notice of Motion.  If, for any reason, she did not receive the Judgment, she has not explained when and how she first became aware of it.  We do not accept the applicant’s excuse for the delay.

7.  In any event, as to the merits of the intended appeal, the applicant advanced the following in the Notice of Motion filed on 17 February 2021:

“1. The learned judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration refusing my application for judicial review.

2. The learned judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the director whereby the Director was required to give reasons justifying the decision. The Judge did not apply the law properly.

3. There is some error in law in my decision. The decision maker just relied on COL information any my previous facts, which were favour on rejecting my claim.

4. Actual life occur different situation then mentioned COL information.  Officer and courts prefer to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining.”

8.  On 19 February 2021, the Registrar of Civil Appeals directed that the applicant shall lodge her written submissions on or before 3 March 2021, and the Notice of Motion shall be determined on paper only without an oral hearing.  We agree it is appropriate to determine this application on paper. 

9.  The applicant only lodged her written submissions on 22 March 2021 in which she 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 how the aforesaid cases and statutory provision were related to or would assist her case.

10.  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.

11.  The applicant’s intended appeal has no merit at all.  No question of great general or public importance has been identified as required by s.22(1)(b)  of the HKCFAO.    

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

13.  By reason of the above, the Notice of Motion filed on 17 February 2021 is dismissed.