RE BERMUDEZ EDNA LABADCHAN

CACV 351/2020

[2022] HKCA 1254

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 351 OF 2020

(ON APPEAL FROM HCAL 2889 OF 2018)

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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 30 May 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal out of time against this Court’s (Lam VP (as he then was), Cheung and Au JJA)  judgment of 22 July 2021 (“the Judgment”)  ([2021] HKCA 1046).  In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 30 July 2020, by which the Deputy Judge refused her application for leave to apply for judicial review ([2020] HKCFI 1743).

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.  Thus, taking into account the Court’s summer vacation in the month of August, the deadline for the applicant to seek leave to appeal to the Court of Final Appeal against the Judgment fell on 20 September 2021.  The applicant was therefore over eight months late 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 complained that the Court was wrong as a matter of law for failing to apply the principles of procedural fairness, irrationality to the Director of Immigration’s decision and that she would be killed or harmed if she returned back to her country. She also claimed the actual situation in her home country was different from the Country of Origin information and that the Director and the Courts “preferred to ignore the overwhelming evidence of violence towards minorities searching for unrealistic silver lining”.

7.  In her supporting affirmation filed on 30 May 2022, the applicant stated:

“I am the Applicant herein.

Leave be granted to me to file Notice of Motion out of time as I was unaware of the rules regarding the 14-days time limit and was unrepresented.” (sic)

8.  Pursuant to Practice Direction 2.1, the applicant should lodge her written submissions on or before 13 June 2022.  She however lodged her written submissions out of time on 22 June 2022.  In the written submissions, the applicant repeated her claim and personal background.  She also cited some legislations, such as the Basic Law, Hong Kong Bills of Rights Ordinance, and Convention against Torture, Other Cruel, Inhuman or Degrading Treatment or Punishment.  She then quoted some passages from Secretary for Security v Sekthevel Prabakar[2005] 1 HKLRD 289, AM v Director of Immigration and William Lam HCAL 102/2012, ST v Betty Kwan CACV 115/2013, Mallawa Arachchige Amitha Priyanganie Mallawa Arachchi v Wesley Wong HCAL 1/2014, R v Commissioner for Local Administration, ex parte Croydon LBC [1989] 1 All ER 1033, and Regina v Secretary of State for the Home Department [1987] 1 WLR 1482, as support for certain general principles. She also argued that the decision maker was Wednesbury unreasonable.

9.  At the outset, the applicant’s delay of over eight months was most substantial and she failed to provide any good reason or evidence to explain her delay.  Mere ignorance of the deadline as asserted is not a good reason for the delay.

10.  More importantly, her intended appeal has no merit at all.  All the matters raised by the applicant in the present application are new and not argued at first instance or on appeal.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it; nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal: see Re Orense Marian Masangkay [2022] HKCA 33 at [7] and Re Dandiwal Sandeep Singh [2021] HKCA 870 at [7].  In any event, her arguments are all general and bare assertions unsupported by particulars.  General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  She has also failed to show how the legal propositions and cases as stated in her written submissions relate to her case.  More pertinently, none of her submissions has identified any error in the Judgment.  As such, they are not viable grounds of appeal.

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

12.  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.

13.  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 filed on 30 May 2022 is dismissed.