RE ESQUILLO RIAH MAE ORDIZ

CAMP 77/2019

[2021] HKCA 322

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 77 OF 209

(ON AN INTENDED APPEAL FROM HCAL 196/2018)

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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 10 January 2020, this court (Chu JA and Barma JA) handed down a judgment dismissing the applicant’s application for extension of time to appeal against the decision of Deputy High Court Judge Josiah Lam (“the judge”) on 20 November 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing her appeal from the decision of the Director of Immigration rejecting her non-refoulement claim.

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 dated 9 March 2020, for leave to appeal to the Court of Final Appeal out of time.  The applicant stated in the Notice of Motion that:

“The claims that the judgment has made stated is no substance in the grounds of the application is not true.

On the strength of the grounds not made a complaint about the poor performance of his duty lawyer is due of fearing he will picked out for misappropriating by the adjudicator

The applicant gently did not have enough time to address the bundle

Rest of the grounds I will submit as soon as possible.”

4.  In the affirmation filed on 9 March 2020, the applicant deposed that:

“I get the judgment dated 10 of January 2020 from the High Court on 24 days of January 2020. Then the next day I went to inquiry to the High Court about the MISCELLANEOUS PROCEEDINGS. Only then I came to know about the refusal of my court proceedings. And due to the long adjournment of the Judiciary I couldn’t manage to file this fresh application to the court. Please accept my sincere apology and accept my fresh application…for the leave to apply to the Court of Final Appeal”

5.  The applicant lodged a written submission in support of the application on 7 May 2020.  In the written submission, the applicant summarized the events leading to her non-refoulement claim.  She referred to the Basic Law and a number of international treaties and authorities. She submitted that the Board failed to meet the high standard of fairness or act fairly.

6.  Having considered the applicant’s Notice of Motion, affirmation and written submission, 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.  We are of the view that the applicant has not provided any reasonable explanation for her delay in bringing the intended appeal.  She did not explain why she was unable to receive the judgment dated 10 January 2020 when it was mailed to her or how she received the judgment on 24 January 2020.  We nonetheless go on to consider the merits of the intended appeal, as this is an important factor in deciding whether or not any extension of time should be granted.

8.  The matters stated 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.  All of the grounds advanced by the applicant lacked particulars.  The applicant has failed to identify any error in our judgment and we are of the view that none of the grounds is reasonably arguable before the Court of Final Appeal. 

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

11.  For these reasons, the Notice of Motion dated 9 March 2020 is dismissed.