RE YATINAH

CACV 70/2021

[2022] HKCA 1410

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 70 OF 2021

(ON APPEAL FROM HCAL NO 2297 OF 2018)

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J U D G M E N T

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

1.  This court handed down judgment on 31 December 2021 ([2021] HKCA 1996)  dismissing the applicant’s appeal against an order of DHCJ C P Pang given on 11 February 2021 refusing to grant leave to the applicant to apply for judicial review in respect of her non-refoulement claim.

2.  The facts and issues in the appeal before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

3.  On 14 February 2022, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal.  However, it was out of time, as s.24(2)  of Hong Kong Court of Final Appeal Ordinance (“HKCFAO”)  Cap. 484 stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from.  The deadline for filing the Notice of Motion expired on 28 January 2022. 

4.  However, under s.24(5)  and s.24(6)  of the HKCFAO, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period.  In the exercise of our discretion whether or not to extend the appeal period, we should consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party. 

5.  In the present case, the applicant was late by more than 2 weeks, which is not insignificant.  No reasons for the delay were given in the Notice of Motion or in her supporting affirmation. 

6.  As to the merits of the intended appeal, s.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.

7.  The applicant did not provide any ground for her intended appeal in the Notice of Motion.  She merely said as the Director of Immigration, the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office, the Court of First Instance and the Court of Appeal had rejected her case, she wants to go to the Court of Final Appeal.

8.  Pursuant to the directions of the Registrar of Civil Appeals the applicant lodged her written submissions on 28 February 2022.  As it is appropriate to do so, the Notice of Motion is determined on paper without an oral hearing.

9.  In her written submissions, she did not raise any valid ground for her intended appeal against our judgment.  She simply repeated that her life was under threat in her home country and that she had come to Hong Kong to save her life.  However, the Director, the Board, the Court of First Instance and the Court of Appeal had rejected her case.  She wants to go to the Court of Final Appeal to obtain a good judgment for the interest of all asylum seekers so that the Director would not send asylum seekers away.

10.  As can be seen from the above, even assuming the Notice of Motion had been filed on time or the delay could be reasonably explained, the applicant’s intended appeal has no merits.  No question of great general or public importance has been identified as required by s.22(1)(b)  of the HKCFAO.  

11.  Nor do we see any basis for leave under the “or otherwise” limb under s.22(1)(b).

12.  By reason of the above, the Notice of Motion filed on 14 February 2022 is dismissed.