RE ANITA

CAMP 569/2021, [2024] HKCA 715

On Appeal From [2022] HKCA 871

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 569 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 66 OF 2019)

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J U D G M E N T

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

1.  On 21 July 2022, the applicant filed a Notice of Motion and a supporting affirmation to apply for leave to appeal to the Court of Final Appeal out of time against this court’s judgment of 21 June 2022 (“the Judgment”)  ([2022] HKCA 871). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge To (“the Deputy Judge”)  dated 15 July 2021, by which the Deputy Judge refused her application for leave to apply for judicial review ([2021] HKCFI 2054).

2.  By a Request for Dismissal of Appeal filed on 19 June 2023, the applicant requested for dismissal of the intended appeal.

3.  On the basis of her said request to dismiss her application for leave to appeal to the Court of Final Appeal, we dismiss the Notice of Motion.  In any event, her intended application fails for the lack of merit, which we will explain further below.

4.  The facts and issues in the appeal, as well as this court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

5.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal 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.

6.  Further, pursuant to section 24(2)  of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for the applicant to seek leave to appeal to the Court of Final Appeal against the Judgment fell on 19 July 2022.  The applicant was therefore two days late in taking out her application for leave to appeal to the Court of Final Appeal.

7.  As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the court has a discretion to extend time under section 24(5)  of the HKCFAO only if good and sufficient grounds are shown by the applicant: see Re Imran Muhammad [2021] HKCA 482 at [9] and the authorities cited therein.  In deciding whether there are such good grounds, the court is entitled to take into account (a)  the length of the delay; (b)  the reasons for the delay; (c)  the chances of the appeal succeeding if an extension of time is granted; and (d)  the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another [2021] HKCA 83 at [4] and the authorities cited therein.

8.  In her Notice of Motion filed on 21 July 2022, the applicant stated:

“DIRECTOR OF IMMIGRATION AND TORTURE CLAIMS APPEAL BOARD DISMISSED MY NONREFOULEMENT CLAIM. I WAS NOT [SATISFIED] SO I CAME TO THE HIGH COURT FOR LEAVE TO APPEAL FOR JUDICIAL REVIEW. THE HIGH COURT AND THE COURT OF APPEAL DISMISSED BY APPLY. I WANT TO GO TO THE COURT OF FINAL APPEAL.” (sic)

9.  In her supporting affirmation, the applicant further stated:

“AFFIRMATION FOR APPLY OF NOTICE OF MOTION BUT OUT OF SCHEDULED TIME. I AM SORRY AS I FAILED TO APPLY IN TIME.” (sic)

10.  Pursuant to Practice Direction 2.1, the applicant lodged her written submissions on 4 August 2022.  In those submissions, she merely repeated the factual basis and procedural history of her non-refoulement claim, further claiming that the Court of Appeal did not listen to her and did not consider her points; and that she disagreed with the Judgment and did not get justice.

11.  At the outset, the applicant’s delay of two days was not substantial and for present purpose, we would focus on the merits of her intended appeal.

12.  In our view, her intended appeal has no merit at all.  At the outset, the allegations made in her Notice of Motion and written submissions are all bare and vague allegations unsupported by any evidence.  Her allegations that this court has not considered her points and that she fails to get justice are all general and bare and wholly without basis.  Her arguments were thoroughly considered and rejected by this court in her reapplication for extension of time to appeal: see [14] - [19] of the Judgment.  She has failed to identify any specific error in the Judgment with sufficient particulars.  Accordingly, her arguments are not proper grounds of appeal and are devoid of merit.

13.  Further and in any event, even taking her case at its highest, her allegations are fact-specific and do not relate to any question of great general or public importance.

14.  Accordingly, the applicant has failed to identify any question of great general or public importance in the intended appeal, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

15.  For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant her extension of time to pursue a hopeless appeal.  Accordingly, the Notice of Motion is also dismissed on this basis.