RE TRI ASTUTI

CAMP 226/2019

[2022] HKCA 1285

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 226 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 597 OF 2018)

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J U D G M E N T

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

1.  On 31 May 2021, this court (Yeung VP and Barma JA) handed down a judgment dismissing the applicant’s application for an extension of time for leave to appeal against the decision of Deputy High Court Judge Josiah Lam given on 30 April 2019 refusing to grant an extension of time for her application for leave for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”), which dismissed her appeal against the decisions of the Director of Immigration.

2.  The facts and issues in the application, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion filed out of time on 6 December 2021, for leave to appeal to the Court of Final Appeal.  In the Notice of Motion, the applicant complained that this court erred in determining that “the Judge had not failed to appreciate the significance of my non-refoulement claim” and that she was unable to adequately prepare for her intended appeal due to the lack of legal representation.

4.  In the affirmation filed on 6 December 2021, the applicant explained that she did not receive a copy of this court’s decision dated 31 May 2021 until she was informed of the same by the Immigration Department. 

5.  In breach of Practice Direction 2.1, the applicant lodged her written submissions late by 10 days.  Given the relatively short delay, we exceptionally went on to consider the written submissions, in which the applicant essentially repeated her complaints of a lack of language assistance (although she acknowledged at [9] that interpretation services were provided to her at every stage of the proceedings) and a lack of legal representation for the appeal to the Board.

6.  Having considered the applicant’s Notice of Motion, affirmation and written submissions, we see no reason to depart from the usual practice of determining an application of this kind on the papers. We have, therefore, determined the applicant’s application on the basis of the documents filed.

7.  The applicant failed to inform this court of the date on which she eventually came to know about the judgment.  We are therefore of the view that the applicant has failed to provide a reasonable explanation for the delay.  The delay of over 5 months also cannot be said to be insubstantial.

8.  In any event, the matters advanced by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal. The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters she has raised.

9.  None of the matters stated in the Notice of Motion are therefore in our view reasonably arguable before the Court of Final Appeal.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

10.  For these reasons, the Notice of Motion filed on 6 December 2021 is dismissed.