RE TAMANG LAXMI BAL

CACV 88/2022

[2022] HKCA 1621

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 88 OF 2022

(ON APPEAL FROM HCAL NO. 2736 OF 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  On 20 July 2022, this Court handed down our judgment ([2022] HKCA 1055) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 15 February 2022 refusing to grant him leave to apply for judicial review.  

2.  On 15 September 2022, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  He has also lodged a written submission to support his application.

3.  Having considered the notice of motion, affirmation 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.  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 considering whether to extend the time, we will have regard to (i) the length of the delay; (ii) the reasons for the delay; (iii) the merits of the intended application; and (iv) the prejudice to the other parties if time was extended.  

5.  The applicant’s notice of motion is late by more than one month, which is not an insignificant delay. The applicant explained in his affirmation that he did not receive the judgment within the time stipulated for making the application.  There was, however, no elaboration.  We note from the court record that our judgment was mailed to the applicant on the day it was handed down.  It was sent to the address stated in the notice of appeal, which was the same as the one stated in the notice of motion. In the absence of further elaboration and explanation, we do not consider the applicant has satisfactorily explained his delay.

6.  We turn next to consider the merits of the intended application. Section 22(1)(b) of the 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.

7.  The notice of motion states that: (1) there is some error in the decision of his case; (2) the decision maker just relied on country of origin information (“COI”) and facts that favour the rejection of the applicant’s claim, when actual situation is different from what is stated in the COI; (3) the Court has ignored the overwhelming evidence of violence towards minorities; and (4) the decision betrays bias and a formulaic approach with no fair assessment of the danger to the applicant’s life.         

8.  Paragraphs (1) to (4) of the written submission are the same as the one lodged on 10 May 2022 in support of the appeal to this Court. Paragraphs (5) to (8) are complaints against the Adjudicator, the administrative body and the Board.   

9.  What the applicant put forward in the notice of motion and written submission do not amount to viable grounds for the application or the intended appeal.  Importantly, it has not been shown that the intended appeal involves a question of great general or public importance, as required by section 22(1)(b).  Further for the reasons we gave in our judgment, they are unarguable.

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

11.  As the statutory requirements for giving leave to appeal are not met, it would be futile to extend the time for the application.  Accordingly, we dismiss the notice of motion.