CAMP 98 /2021
[2022] HKCA 450
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 98 OF 2021
(ON AN INTENDED APPEAL FROM HCAL NO 2630 OF 2018)
________________________
BETWEEN
Emma Loizaga Llanes alias Llanes Emma L
Applicant
and
Torture Claims Appeal Board /
1st Putative Respondent
Non‑refoulement Claims Petition Office
Director of Immigration
2nd Putative Respondent
________________________
Before:
Hon Kwan VP and G Lam JA in Court
Date of Written Submission:
21 December 2021
Date of Judgment:
1 April 2022
________________________
J U D G M E N T
________________________
Hon Kwan VP (giving the Judgment of the Court):
1. This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and G Lam JA) handed down on 26 November 2021 ([2021] HKCA 1754 ). The Court of Appeal dismissed her application for leave to appeal out of time against the decision of Deputy High Court Judge K W Lung on 22 May 2020 ([2020] HKCFI 886 ) refusing to grant leave to apply for judicial review concerning the applicant’s non-refoulement claim.
2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 9 December 2021 that the Notice of Motion shall be determined on paper only without an oral hearing. The applicant lodged her written submissions on 21 December 2021. Having considered her submissions and the papers, it is considered appropriate to determine this application on paper.
3. The applicant is a national of the Philippines. She came to Hong Kong on 10 November 1992 to work as a domestic helper. Her employment contract was terminated on 24 January 1997 and she subsequently overstayed. She gave birth to her daughter on 30 July 1999 and surrendered to the Immigration Department with her daughter on 27 January 2014. She lodged a non-refoulement claim on 21 January 2015 on the basis that she will be harmed or killed by her ex-boyfriend and/or people from the New People’s Army (“NPA”) as she had refused to marry her ex-boyfriend and the NPA wished to take over her family farmland.
4. She took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. Her application was late for more than 1.5 months. It was refused by DHCJ C P Pang on 18 March 2021 [1] .
5. The applicant renewed her application to the Court of Appeal for extension of time to appeal on 30 March 2021. The application was dismissed by the Court of Appeal on 26 November 2021 as the applicant failed to show any prospect of success in her intended appeal.
Grounds of appeal
6. The applicant attached the grounds of appeal to the Notice of Motion which may be summarised as follows:
(1) She did not receive the judgment on time. The delay for filing the appeal was not intentional.
(2) The Board and the Director failed to take into account and/or give proper weight to the relevant considerations and materials, hence the decisions are illegal.
7. Her written submissions are substantially the same as the ones she lodged with the Court of Appeal on the last occasion in which she contended, among other things, that the Director and the Board failed to make sufficient inquiries into the country of origin conditions of her claim and adopted a passive approach in contravention of the high standards of fairness.
Analysis and disposition
8. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appea l, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public import ance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.
9. The applicant’s complaints against the Director and the Board are just bare assertions without particulars or evidence in support. She has not demonstrated that the Court of Appeal was wrong in dismissing her application and failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).
10. We therefore refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 9 December 2021.
(Susan Kwan)
(Godfrey Lam)
The Applicant, acting in person
[1] [2021] HKCFI 540