RE SURTINI

CAMP 349/2023, [2024] HKCA 856

On Appeal From [2022] HKCFI 831

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 349 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 2554 OF 2018)

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DECISION

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Hon Cheung JA (giving the Decision of the Court) :

I.  Renewed application for extension of time to appeal

1.  The applicant, by way of summons dated 15 November 2023 (‘the second summons’), renewed her application for extension of time to appeal against the Decision of Deputy High Court Judge K W Lung (‘the Judge’) dated 28 March 2022 (‘the Decision’).  The second summons is a repeated application by the applicant in CAMP 540/2022 of her renewed application by summons dated 19 December 2022 (‘the first summons’) for extension of time to appeal against the Decision.  This Court (Au and Chow JJA) dismissed the first summons on 24 July 2024 in Re: Surtini [2024] HKCA 618.

2.  By way of background, on 13 November 2018, the applicant issued her application for leave to apply for judicial review by Form 86 in HCAL 2554/2018.  The applicant’s intended judicial review was against the Decision of the Torture Claims Appeal Board (‘the Board’) dated 22 October 2018 which dismissed her appeal against the Decision of the Director of Immigration (‘the Director’) dated 26 February 2018 rejecting her non‑refoulement claim.  The Judge refused to grant leave on 28 March 2022.

3.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 11 April 2022).  Due to closure of the High Court Registry during the General Adjournment Period arising from the COVID-19 pandemic from 7 March 2022 to 11 April 2022, the deadline for applicant to appeal against the Form CALL‑1 fell on 12 April 2022.  As the applicant was nine days late[1], she issued a summons on 21 April 2022 for an extension of time to appeal in CAMP 540/2022. The Judge on 10 November 2022 rejected her application.

4.  The applicant then issued the first summons and later the second summons to renew her application before the Court of Appeal.

5.  Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

II.  Our Decision

6.  Despite a previous renewed extension of time application that was unsuccessful and conclusively determined by the Court of Appeal in CAMP 540/2022, the applicant is now attempting to re‑litigate her appeal by bringing a second application on the same subject matter.  This is an abuse of process: Bepary Shahealom [2018] HKCA 763 at [16]; Khan Kamran v Torture Claims Appeal Board [2020] HKCA 380 at [21]-[28]; Re Mamun Mohammad Tuhin Al [2018] HKCA 442 at [13]; Sujan Gazi v Torture Claims Appeal Board [2018] HKCA 519 at [4.1].

7.  Accordingly, we will strike out the applicant’s second summons.