RE HIMATUN NAFIAH

CAMP 375/2021

[2022] HKCA 446

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 375 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 465 OF 2021)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  On 3 December 2021, this Court handed down our judgment ([2021] HKCA 1791) refusing to extend the time for the applicant to appeal the decision of Deputy High Court Judge Lung given on 3 May 2021 which refused to extend the time for her to apply for judicial review and dismissed her application for leave to apply for judicial review.

2.  On 31 January 2022, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal. She has also put in a written submission to support the application.

3.  Having considered the applicant’s notice of motion 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.  Section 24(2) of the Court of Final Appeal Ordinance, Cap. 484 provides that 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. Under section 24(5), the Court of Appeal may extend the time for the filing of the notice of motion. The Court will only extend the time if there is a good cause. In considering whether to extend the time, the Court will have regard to: (i) the length of the delay, (ii) the reasons for the delay; (iii) the merits of the intended appeal, and (iv) the prejudice that may occasioned to the putative respondent(s) if time was to be extended.

5.  The applicant is one month late, which is not an insignificant delay. She stated in her affirmation that she only received this court’s judgment on around 24 January 2022, and due to the Covid situation it was difficult for her to get help. She also said that because she was an uneducated person and had language problem, it took her days to find help.

6.  The Court record shows that on 3 December 2021 the judgment and the sealed order were sent to the applicant by post at the address she provided in the summons filed in this case. The documents should have reached the applicant in about a week’s time, at the latest. The applicant has not explained why, and in what circumstances, she came to receive the court documents so late. In these circumstances, we do not consider the applicant has satisfactorily explained the delay.

7.  We turn next to consider the merits of the application. The background to this case and the applicant’s claim have been set out in our judgment. We will not repeat them.

8.  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 stated that (i) the judges were wrong as a matter of law for not applying the principle of irrationality; (ii) there is some error in the determination of the applicant’s case. The decision maker just relied on country of origin information and facts that favour the rejection of his case; (iii) the actual country condition is different. The immigration officer and the High Court prefer to ignore the overwhelming evidence of violence committed on the minorities; and (iv) the judge did not apply the law properly.

10.  The written submission lodged on 14 February 2022 is the same as the written submission lodged on 21 September 2021 in support of the application for extension of time to appeal (see [19] of our judgment).

11.  We are of the view that all the matters put forward by the applicant do not afford any basis for granting leave to appeal. Importantly, they all relate to the applicant’s claim and personal circumstances. It has not been shown that the intended appeal involves a question of great general or public importance. We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

12.  As the statutory requirements for giving leave to appeal are not met, it would be futile to extend the time for applying for leave to appeal. Accordingly, the notice of motion is dismissed.