RE SUSIANI

CAMP 25/2023, [2024] HKCA 797

On intended appeal from [2022] HKCFI 3400

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 25 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 2386 of 2018)

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J U D G M E N T

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Hon Chu VP giving the Judgment of the Court:

1.  On 30 July 2024, this Court handed down our judgment ([2024] HKCA 644)  refusing to extend the time for the applicant to appeal the decision of Deputy High Court Judge K W Lung given on 4 November 2022 which refused to give her leave to apply for judicial review.

2.  On 1 August 2024, the applicant filed a notice of motion to apply for leave to appeal against our judgment to the Court of Final Appeal.  She has also put in a written submission to support the application.

3.  Having considered the applicant’s notice of motion 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.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 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.

6.  The notice of motion set out two grounds in support of the application as follows:

“1. Failed to give proper reasons why my extension of leave for appeal has refused, the TCAB did not consider the fact that why I was late to filed my notice of appeal on time, I was not aware and its my mistake to filed my appeal on time. I beg to the Honourable Court to consider my Notice of Motion.

2.  Failure to proper apply BOR2 and BOR3 risk that I would not face any problem into my country.”

7.  The applicant’s written submission made the following points:

(1)  The Board considered the risk of harm was too low.  The fact is she still faces danger in her country, her fear continues and she is seeking protection.  Her claim is not a private and personal matter.  As a woman, it is hard for her to survive in her country. 

(2)  The Director of Immigration and the Torture Claims Appeal Board failed to consider and/or give proper weight to relevant considerations and materials, namely (a)  they did not enquire into her fear and the continuing threat from her enemies, and the country of origin information showed that the authority could not or had no intention to protect her; (b)  her claim was based on a true story of her life, and maybe the risk arose from private or personal dispute but it is too risky to return to her country.

(3)  The decision makers did not properly consider her fear.  The Court also did not focus on her fear and just confirm the decisions of the Director and the Board.  The Court should consider her fear and it is out of fear that she seeks protection in Hong Kong.

8.  For the following reasons, we are of the view that the matters set out in the notice of motion and written submission do not afford any basis for granting leave to appeal: 

(1)  Importantly, they all concern the applicant’s claim and personal circumstances, and do not show that the intended appeal involves any question of great general or public importance. 

(2)  The grounds in the notice of motion are clearly misplaced as our refusal to extend time was not based on the delay but was because the intended appeal has no prospect of success. 

(3)  The arguments in the written submission do not engage the reasons given in our judgment.  It is also incorrect to say that the Board had not given consideration to the applicant’s assertions of fear and risk of harm. 

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

10.  As the statutory requirements for giving leave to appeal are not met, we dismiss the notice of motion.