RE SRI WAHYUNI

CAMP 512/2022, [2024] HKCA 1182

On appeal from [2022] HKCFI 1067

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 512 OF 2022

(ON AN APPEAL FROM HCAL NO. 309 OF 2019)

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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 13 December 2023, this court handed down our judgment ([2023] HKCA 1344)  dismissing the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 13 April 2022, which dismissed her application for leave to apply for judicial review.

2.  On 13 November 2024, the applicant filed a Notice of Motion together with an affirmation to apply for leave to appeal this court’s judgment to the Court of Final Appeal out of time.  The applicant has not lodged any written submission to support her application.

3.  Having considered the applicant’s Notice of Motion and affirmation, 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 application for relief from sanctions have been set out in our judgment.  We will not repeat them.

5.  Section 24(2)  of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Section 24(5)  of the Ordinance further provides that the Court of Appeal may extend the time for the filing of the notice of motion.  In deciding whether to extend time, the Court will have regard to (1)  the length of the delay; (2)  the reasons for the delay; (3)  the merits of the intended application; and (4)  the prejudice that may occasioned to the other party if the time is extended.

6.  The applicant’s notice of motion is late by more than ten months, which is very serious delay.  The applicant stated in the affirmation that she only knew of this court’s judgment in mid-September 2024, and she had difficulty getting help as she was detained by the Immigration Department, was uneducated and suffered from language problem.  We note from the court record that the judgment and the sealed order were sent by mail to the applicant’s address given in her summons and supporting affirmation, and had not been returned.  The applicant has not provided details of her detention by the Immigration Department, whether this commenced before or after the judgment was sent to her given address.  In any event, the applicant is under a duty to inform the court of any change in her address for service.  In the circumstances, we do not accept that the delay has been satisfactorily explained.  

7.  As to the merits of the application, section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance 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.

8.  The Notice of Motion sets out six grounds of appeal, namely (1)  the judges were wrong in not applying the principle of procedural fairness; (2)  the judges were wrong in not applying the principle of rationality; (3)  there was error of law in the decision in that the decision- maker only relied on country of origin information and facts that favour the rejection of the applicant’s claim; (4)  actual life differed from what was stated in the country of origin information, and the officers and the courts had ignored the overwhelming evidence of violence towards minorities; (5)  the Judge did not apply the law properly and there was procedural unfairness; and (6)  the applicant would be harmed or killed and her life would be in danger if she returned to her country.   

9.  We are of the view that these are not viable grounds for the application.  Importantly, no question of great general and public importance has been identified, as required by section 22(1)(b)  of the Ordinance, had been identified.  Further, these grounds do not engage the reasons we gave for refusing the applicant’s renewed application for time extension: see [18] of our judgment.

10.  We also do not see any basis for the “or otherwise” limb under section 22(1)(b). 

11.  As the statutory requirements for giving leave to appeal are not met, we dismiss the Notice of Motion.