RE JUMANAH

CACV 395/2021

[2022] HKCA 1367

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 395 OF 2021

(ON APPEAL FROM HCAL 2170/2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

Application

1.  Before the court is a notice of motion filed on 11 August 2022 by the abovenamed applicant, applying for leave to appeal to the Court of Final Appeal (“CFA”) against the judgment of this court (Barma JA and Lisa Wong J) dated 6 December 2021 ([2021] HKCA 1842) (“Judgment”). By the Judgment, we dismissed the applicant’s appeal from a decision dated 5 August 2021 ([2020] HKCFI 2287) by Deputy High Court Judge Bruno Chan, refusing her leave to apply for judicial review of the decision dated 2 October 2018 of the Torture Claims Appeal Board (“Board”) concerning her non-refoulement claim (“NRF Claim”).

Application out of time

2.  Section 24(2) of the Court of Final Appeal Ordinance (Cap 484) (“Ordinance”) requires a notice of motion seeking leave to appeal to the CFA to be issued not later than 28 days from the date of the judgment to be appealed from.

3.  Therefore, the time within which the applicant should issue the notice of motion expired on 3 January 2022.  In other words, the applicant was 8 months and 8 days out of time.  Such delay is, on any view, serious.  Furthermore, save for acknowledging in the supporting affirmation filed together with the notion of motion that her application was late, the applicant made no attempt whatsoever to explain the cause(s) for her delay.  Given the inordinate length of the delay and the lack of justification therefor, leave to appeal can be refused on such grounds alone.

4.  In any event, a consideration of merits (or rather, the lack thereof) of the intended appeal, as discussed below, reinforces our conclusion that the applicant should not be given any extension of time for the filing of the notice of motion, which should stand dismissed on both procedural and substantive grounds.

Paper disposal appropriate

5.  Pursuant to Practice Direction 2.1 and the direction of the Registrar of Civil Appeals, unless this court otherwise directs, the notice of motion shall be determined on paper without an oral hearing.  Having reviewed the papers available to us, we agree that a paper disposal is appropriate in this case.

Statutory threshold for leave to appeal to the CFA

6.  Under s 22(1)(b) of the Ordinance, an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”) or the CFA from any civil judgment of the CA 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 CFA for decision.

Applicant’s contentions in support of leave to appeal to CFA

7.  In seeking leave to appeal to the CFA, the applicant just asserted in the notice of motion that “I want to challenge the decision.”

8.  The applicant’s written submission dated 22 August 2022 largely reiterated the alleged circumstances said to have given rise to her fear of harm underpinning the NRF Claim, which allegations were dismissed on credibility.

Discussion

9.  The applicant has plainly not raised any issue for determination by the CFA, whether of great, general or public importance or otherwise.

10.  Indeed, neither the notice of motion nor the applicant’s written submission engages the reasons given in the Judgment.  The applicant has not identified any error in the Judgment.  It is not helpful at all for one to state her wish to challenge the Judgment without giving any reasons or particulars.  Further, as noted in [11] of the Judgment, the Board found the applicant not a credible witness in light of how she constantly shifted grounds.  However, the applicant has not, before the Judge, articulated any errors of law, procedural unfairness or irrationality on the part of the Board that rendered such findings unsafe.  In our view, she has not put forward any ground that is reasonably arguable before the Court of Final Appeal.

11.  Nor do we see any scope to grant leave under the “or otherwise” limb.

12.  As neither of the statutory criteria under s 22(1)(b) for leave to appeal to the CFA is met, we refuse to extend time for the applicant to file the notice of motion and, further, dismiss the notice of motion.