RE DWI NANI MARYANI

CACV 553/2021

[2023] HKCA 50

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 553 OF 2021

(ON APPEAL FROM HCAL NO 135 OF 2019)

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J U D G M E N T

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

1.  On 21 November 2022, the applicant filed a Notice of Motion and a supporting affirmation to apply for leave to appeal to the Court of Final Appeal out of time against this Court’s judgment of 20 October 2022 (“the Judgment”)  ([2022] HKCA 1551). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  dated 26 November 2021, by which the Deputy Judge refused her application for leave to apply for judicial review ([2021] HKCFI 3574).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal 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.

4.  Further, pursuant to section 24(2)  of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  In the present case, the deadline for the applicant to seek leave to appeal to the Court of Final Appeal against the Judgment fell on 17 November 2022.  Accordingly, the applicant was late for four days in taking out her application for leave to appeal to the Court of Final Appeal.

5.  As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the Court has a discretion to extend time under section 24(5)  of the HKCFAO only if good and sufficient grounds are shown by the applicant: see Re Imran Muhammad [2021] HKCA 482 at [9] and the authorities cited therein. In deciding whether there are such good grounds, the Court is entitled to take into account (a)  the length of the delay; (b)  the reasons for the delay; (c)  the chances of the appeal succeeding if an extension of time is granted; and (d)  the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another [2021] HKCA 83 at [4] and the authorities cited therein.

6.  In her Notice of Motion, the applicant stated:

“DIRECTOR OF IMMIGRATION AND TORTURE CLAIMS APPEAL BOARD DISMISSED MY NONREFOULEMENT CLAIM. THE HIGH COURT AND THE COURT OF APPEAL DISMISSED MY LEAVE TO APPLY FOR JUDICIAL REVIEW. ALL THIS JUDGEMETS ARE NOT GOOD FOR ME. I WANT TO GO TO C.F.A.” (sic)

7.  In her supporting affirmation, the applicant further stated:

“APPLY OF NOTICE OF MOTION BUT OUT OF SCHEDULED TIME. PLEASE ACCEPT MY APPLY.” (sic)

8.  Pursuant to Practice Direction 2.1, the applicant lodged her written submissions on 5 December 2022.  In those submissions, she merely repeated the procedural history of her non-refoulement claim and alleged that the Board had made many errors but her arguments were rejected by the Court below and this Court and that she did not understand the practical relation between the decisions and her arguments.  She further asserted that she and all her asylum seeker friends are facing the same problem.

9.  Although the applicant’s delay of four days is not very substantial, we are of the view that her intended appeal has no merit at all.  The matters raised in her Notice of Motion, supporting affirmation and written submissions are all general and bare allegations without any specific particulars or explanation.  She did not identify any error in the Board’s Decision or the Judgement.  Accordingly, the matters raised by the applicant are not proper grounds of appeal.  General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  It is also unclear how her alleged asylum seeker friends’ cases have any relevance to her present intended appeal.  Clearly, there is no merit in her intended appeal.

10.  In any event, taking her case at its highest, her allegations are fact-specific and do not relate to any question of great general or public importance.

11.  Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

12.  For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant her extension of time to pursue a hopeless appeal.  Accordingly, the Notice of Motion is dismissed.