MAMAC MARY RESFIE LUMA YAG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 388/2020

[2021] HKCA 257

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 388 OF 2020

(ON APPEAL FROM HCAL NO 2860 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Cheung JA) handed down on 24 December 2020 ([2020] HKCA 1063). The Court of Appeal dismissed her appeal against the decision of Deputy High Court Judge K W Lung on 6 August 2020 ([2020] HKCFI 1872) dismissing the application for leave to apply for judicial review concerning her non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 9 February 2021 that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance of the direction for the applicant to lodge written submissions or the expiry of the time for complying with the direction being 22 February 2021.  The applicant failed to lodge written submissions as directed.  Having considered the papers, we think it is appropriate for the Court of Appeal to determine this application on paper and will proceed accordingly.

3.  The applicant is a Filipino national.  She is 42 years old.  She came to Hong Kong as a visitor on 24 August 2014.  She subsequently overstayed and surrendered to the Immigration Department on 24 June 2015.  She lodged a non-refoulement claim on 27 July 2015 on the basis that she would be harmed or killed by her ex-boyfriend and three unknown men who looked for her ex-boyfriend.

4.  Her non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 15 February 2018.  Her appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board(“the Board”) on 30 November 2018. 

5.  She filed a Form 86 on 13 December 2018 to seek leave to apply for judicial review against the decision of the Director.  DHCJ Lung amended the Form 86 by replacing the Director with the Board as the putative respondent and replacing the Immigration Department with the Director as the putative interested party, pursuant to Order 20 rule 8 of the Rules of the High Court. The application was refused by the judge on 6 August 2020.

6.  On 18 August 2020, the applicant filed a notice of appeal against the decision of DHCJ Lung.  The applicant consented to the disposal of her appeal on paper.  Her appeal was dismissed by the Court of Appeal on 24 December 2020.  The applicant filed a Notice of Motion on 8 February 2021 for leave to appeal to the Court of Final Appeal.

7.  In her Notice of Motion, the applicant stated the following grounds of appeal:

(1)  her problem in her country is true and it is impossible for her to return;

(2)  it is her fundamental right to stay in Hong Kong and to live in the world.

8.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Section 24(5) further provides that the Court of Appeal may, if it considers appropriate, extend the time for making an application for leave to appeal.

9.  Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.

10.  In the present application, the applicant was late for more than two weeks.  Good grounds have to be shown by the applicant for the court to grant her an extension of time.  The relevant factors in considering whether an extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

11.  As the applicant has not provided any explanation for her delay in her affirmation, there is no good reason why the Court of Appeal should grant an extension of time to file the Notice of Motion.

12.  In any event, the applicant has not shown any or any sufficient merits in her intended application for leave to appeal to the Court of Final Appeal.  In particular, she has not demonstrated that the Court of Appeal was wrong in dismissing her appeal and she has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b).  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b). 

13.  We therefore refuse to give leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 8 February 2021.