RE MESIYATI AND ANOTHER

CAMP 280/2021

[2023] HKCA 805

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 280 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1885 OF 2018)

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J U D G M E N T

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

1.  On 11 April 2023, this court handed down our judgment ([2023] HKCA 1878) dismissing the 1^st and 2^nd applicants’ application to extend time to appeal the decision of Deputy High Court Judge Lung given on 7 August 2020 refusing to extend the time for them to apply for judicial review and dismissing their application for leave to apply for judicial review in respect of their non-refoulement claims.

2.  On 24 April 2023, the applicants filed a Notice of Motion to apply for leave to appeal this court’s judgment to the Court of Final Appeal. The 1^st applicant has lodged a written submission in support of the application. As a result of the legal aid application made by the 1^st applicant on behalf of the 2^nd applicant[1], who is a minor, these proceedings had been stayed for 42 days. The stay expired on 26 June 2023.

3.  Having considered the 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.  The background to this case and the applicants’ claims have been set out in our judgment. We will not repeat them.

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, 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.

6.  The Notice of Motion set out the following grounds in support of the application:

(1) Failure to consider that the 1^st applicant and her children will be in danger upon being refouled.

(2) Failure to consider that the 1^st applicant and her children will not be able to survive in the 1^st applicant’s country.

(3) It was because the 1^st applicant is a lay person that the appeal was not submitted within the prescribed time. The Court is therefore requested to consider the late appeal.

(4) Failure to consider the country of origin condition.

7.  The written submission made by the 1^st applicant is largely the same as the one lodged in support of the renewed application for extension of time to appeal (see [24] of our judgment). In gist, it states that: (1) the appeal was late because the 1^st applicant has no knowledge of the judicial system and the delay was not intentional; (2) the problem that the 1^st applicant has in her country is genuine and she and her child will be in danger there; and (3) the Director of Immigration and the Torture Claim Appeals Board failed to take into account relevant considerations, had taken into account irrelevant considerations, and had not given proper weight to relevant considerations and materials; hence their decisions were illegal. There is, however, no elaboration of the matters that the Director and the Board are said to have wrongly taken into account, failed to take into account or afforded improper weight.

8.  We are of the view that what was put forward by the applicants do not constitute viable grounds for giving leave to appeal. Importantly, no question of great general or public importance has been identified as required by section 22(1)(b) of the Ordinance. Further, for the reasons we gave at [25] to [31] of our judgment, the grounds put forward by the applicants are unarguable. We also do not see any basis for the “or otherwise” limb under section 22(1)(b).

9.  Accordingly, we dismiss the Notice of Motion.