RE KHATUN MST ASMA

CAMP 279/2019

[2021] HKCA 1213

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 279 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 89/2019)

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J U D G M E N T

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

1.  On 4 February 2021, this court (Lam VP and Barma JA) handed down a judgment dismissing the applicant’s application for relief from sanction in respect of the order of this court dated 8 July 2020 dismissing the applicant’s application for leave to appeal dated 7 November 2019. The application for leave to appeal was against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 19 July 2019 refusing leave to the applicant’s second application for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing her appeal from the decisions of the Director of Immigration rejecting her non‑refoulement claim.

2.  The facts and issues in the application, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion filed on 8 April 2021, for leave to appeal to the Court of Final Appeal out of time.  The applicant stated in the Notice of Motion that:

“I would like to inform the [court] that there is some error in law in my decision. Decision maker just relied on COI information and my previous facts which were in favor while rejecting my claim. Actual life occur different situation then what is mentioned in COI information. The Officer and courts prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

4.  In the affirmation filed on 8 April 2021, the applicant deposed that:

“The plaintiff seek leave to file Notice of Motion out of time as the plaintiff did not receive the judgment within the time stipulated for appeal. The plaintiff now craves for leave that the court be moved out of time.”

5.  The applicant failed to comply with Practice Direction 2.1 and did not lodge the skeleton submission within time, despite having been reminded of the same by the direction made by the Registrar of Civil Appeals on 9 April 2021.  The applicant was therefore debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

6.  Having considered the applicant’s Notice of Motion and affirmation, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

7.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  She has not explained why she might have failed to receive the letter enclosing our judgment dated 4 February 2021 or how she eventually came to know about the judgment.

8.  We nonetheless go on to consider the merits of the intended appeal.

9.  The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters she has raised.  

10.  In the Notice of Motion, the applicant claimed that there are some errors in the decisions by the Board and the Director but she did not address any of the issues identified by this court in [22] – [28] of our judgment.  She did not explain why she should be allowed to re-open the application for leave to appeal which she had sought to have dismissed.  Nor did she explain why she should be permitted or commence a second application for judicial review against the same decision.  Her Notice of Motion does not engage with our judgment at all.

11.  In our view, the application for leave to appeal to the Court of Final Appeal is entirely without merit.

12.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

13.  For these reasons, the Notice of Motion dated 8 April 2021 is dismissed.