RE SULISTYOWATI DWI KURNIA AND ANOTHER

CACV 584/2018

[2020] HKCA 456

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 584 OF 2018

(ON APPEAL FROM HCAL NO. 815 OF 2017)

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J U D G M E N T

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Hon Au JA (giving judgment of the court):

1.  By a judgment dated 5 September 2019 ([2019] HKCA 1009) (“the Judgment”), this court dismissed the applicants’ appeal against the decision of Campbell-Moffat J dated 11 December 2018 ([2018] HKCFI 2214), refusing leave to apply for judicial review. 

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office dated 8 September 2017 and the decisions of the Director of Immigration dated 26 February 2016 and 16 December 2016 rejecting the 1^st applicant’s non-refoulement claim, as well as the decision dated 24 April 2017 rejecting the 2^nd applicant’s non-refoulement claim.

3.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, pursuant to paragraph 3 of Practice Direction 2.1, we see no reason to deviate from the usual practice and proceed to consider this application without an oral hearing.

4.  The applicants filed the Notice of Motion on 31 October 2019 to apply for leave to appeal against the Judgment to the Court of Final Appeal.  Pursuant to section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (“HKCFAO”), the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for filing the present application expired on 3 October 2019.  The applicants are therefore 28 days out of time.

5.  Under section 22(1)(b) of the HKCFAO, leave to appeal to the Court of Final Appeal will only 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.  Further, 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.  In deciding whether there are such good grounds, the court is entitled to take into account (1) the length of the delay, (2) the reasons for the delay, (3) the chances of the appeal succeeding if an extension of time is granted, and (4) the degree of prejudice to the respondent if the application is granted. See: Hong Kong Civil Procedure 2020, Vol.1, paragraph E2/24/1 and the authorities cited therein. 

7.  For the following reasons, the applicants have failed to show good grounds for an extension of time to be granted.

8.  The delay of 28 days is a significant one, in particular when considered in the context that the statutory period for the Notice of Motion to be filed is by itself also only 28 days. 

9.  The applicants have not provided any explanations in this application for the delay.  However, we note from the court’s record that the Judgment which was originally sent to the applicants by ordinary mail at the address provided by them was returned on 23 October 2019 marked, “no such person”.  A copy of the Judgment was resent again on 24 October 2019 to the applicants at the same address after the judicial clerk had called and confirmed with the 1^st applicant that the address was correct.  Thereafter, the applicants filed the Notice of Motion on 31 October 2019.  It shows that the applicants can in fact receive the Judgment at that address.  It is therefore unclear as to why the first mail was returned and marked with “no such person”, especially when the applicants have also not sought to provide any plausible explanations for that.  Be that as it may, given these circumstances, we are prepared to give the benefit of doubt to the applicants and accept that the delay is excusable.

10.  We are however of the view that the intended appeal to the Court of Final Appeal is hopeless.  The applicants’ stated ground of appeal in the Notice of Motion is only that “The Decision is Unreasonable”.  They have not identified any errors (let alone any particularised errors) in the Judgment to support the intended appeal.  This is not a viable ground of appeal, and the intended appeal has no prospect of success.  It would be futile to extend time.

11.  In the premises, and in any event, the applicants have failed to identify any question of great general or public importance that ought to be submitted to the Court of Final Appeal for decision.  Nor do we see any basis to grant leave on the “otherwise” limb.  Plainly, the statutory requirements under s.22(b) of the HKCFAO are not met.    

12.  Accordingly, we refuse to extend the time for the applicants to apply for leave to appeal, and dismiss the Notice of Motion.