RE CAO THI HAU

CACV 403/2020

[2022] HKCA 1408

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 403 OF 2020

(ON APPEAL FROM HCAL NO 942 OF 2020)

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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.  On 27 April 2021, Lam VP (as Lam PJ then was)  Yuen and Chu JJA (“the Court”)  handed down judgment ([2021] HKCA 555)  dismissing the applicant’s appeal against an order of DHCJ Bruno Chan given on 10 August 2020 refusing to grant leave to the applicant to apply for judicial review in respect of her non-refoulement claim.

2.  The facts and issues in the appeal before the Court, as well as the Court’s reasons for dismissing it, are set out in the judgment and will not be repeated here.

3.  On 24 November 2021, the applicant filed a Notice of Motion for leave to appeal this Court’s judgment to the Court of Final Appeal.  As it is appropriate to do so, the Notice of Motion is determined on paper without an oral hearing.

4.  The Notice of Motion is 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 deadline for filing the Notice of Motion expired in May 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 months, which is substantial.  In her supporting affirmation, she explained that she does not understand English and needed to ask some friends to help her.

7.  As to the merits of the intended appeal, s.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.

8.  The Notice of Motion stated the following:

“I want to appeal to Court of Final Appeal. I ask the Court of Appeal to give me a chance to seek justice and help me get asylum in Hong Kong. It was unsatisfactory that the Court of Appeal ruled in the judgment of my case that I had no chance of success in reviewing the TCAB’s decision.”

9.  Pursuant to direction given by the Registrar of Civil Appeals the applicant lodged written submissions on 29 November 2021. 

10.  In her written submissions, she repeated the background of her case.  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 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 her credibility.

11.  Even assuming the Notice of Motion had been filed on time or the delay could have been reasonably explained, the applicant’s intended appeal has no merits.  There was no attempt to engage with the reasons of the Court.  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 leave under the “or otherwise” limb under s.22(1)(b). 

13.  By reason of the above, the Notice of Motion filed on 24 November 2021 is dismissed.