RE RINI ARTINI

CAMP 25/2019

[2020] HKCA 709

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 25OF 2019

(ON AN INTENDED APPEAL FROM HCAL 295/2018)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  On 3 July 2020, the Applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 12 June 2019.

2.  Previously on 18 June 2019 the Applicant had filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against the same judgment of this Court.  On 28 June 2019, Lam VP directed that the Notice of Motion of 18 June 2019 be dismissed pursuant to Section 14AB of the High Court Ordinance (Cap 4).  The order for dismissal was sealed on 15 August 2019 and given to the Applicant by hand on 16 August 2019.

3.  After the Notice of Motion of 3 July 2020 was filed, the Court of Final Appeal handed down its decision in H v Director of Immigration [2020] HKCFA 22 on 14 July 2020.  In that judgment, the Court of Final Appeal held that an applicant did not need Section 14AA leave to appeal to this Court in respect of a refusal of extension of time to bring an application for leave to judicial review, Section 14AB is therefore not engaged.

4.  The Applicant has set out the following matters in her Notice of Motion of 3 July 2020 for leave to appeal to the CFA:

“ 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 on the dated 21^st November 2018 refusing my application for Judicial Review.

2 –  The Learned Judges were wrong as a matter of the Law for not having applied the principle of procedural unfairness to the decission to the Director here by the Director was required to give reason Justifying the Decission.” [sic]

5.  Notwithstanding direction from the Registrar of Civil Appeal, the Applicant did not lodge any written submissions in support of this application.

6.  The Court had considered the merit of the Applicant’s case in the judgment of 12 June 2019. It was held that there was inexcusable delay by the Applicant in her application for judicial review and her challenge to the Board’s decision had no merit, see [18] to [24] of the judgment.  The Applicant did not raise any discernible or arguable ground for disturbing that judgment.

7.  Though it has recently been held by the Court of Final Appeal in H v Director of Immigration [2020] HKCFA 22 that an applicant did not need Section 14AA leave to appeal to this Court in respect of a refusal of extension of time to bring an application for leave to judicial review, and technically an appeal can be brought to this Court by way of appeal out of time, it cannot assist the Applicant in this instance because:

(a)  The present application is made in respect of our judgment on refusal of Section 14AA leave and it serves no purpose to have an appeal to the Court of Final Appeal regarding such refusal of leave.  The reversal of our decision on Section 14AA leave on the basis that such leave is not required would not automatically lead to success in her appeal against the Judge’s decision of 21 November 2018 refusing to extend time to her to bring judicial review.  To achieve that she needs to bring an appeal to this Court before the Court of Final Appeal can entertain an appeal from this Court;

(b)  Due to the lapse of time, the Applicant needs an extension of time to bring an appeal to this Court and if she made such application, the Court will have regard to the merits of her intended appeal in deciding if extension should be granted;

(c)  Having regard to our views on the lack of merit in her intended appeal as set out at [18] to [24] of our judgment of 12 June 2019, the Court will not grant extension of time for a futile appeal to be brought.

8.  Further, by virtue of the order of 28 June 2019, it is an abuse of process for the Applicant to apply to this Court for leave to appeal a second time.   

9.  On 11 August 2020, the Applicant filed a Notice with the Court indicating that she wished to withdraw the Notice of Motion of 3 July 2020.  The practice of this Court is to dismiss such application instead of granting leave to withdraw.

10.  For these reasons, we order the Applicant’s Notice of Motion of 3 July 2020 be struck out and dismissed.