Re Manganaan Sixta Zamudio

CAMP 239/2019

[2020] HKCA 869

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 239 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 610 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 19 June 2020, the applicant filed her Notice of Motion to apply for leave to appeal to the Court of Final Appeal (“CFA”) against this Court’s (Cheung and Au JJA) judgment of 4 June 2020 (“the Judgment”) [2020] HKCA 412.

2.In the Judgment, we refused to grant leave to the applicant to appeal the decision of Deputy High Court Judge Josiah Lam dated 30 July 2019 refusing to grant extension of time to the applicant to apply for judicial review (“the Deputy Judge’s Decision”) [2019] HKCFI 1900.

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.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 provides that an appeal shall lie to the CFA at the discretion of this Court or the CFA 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.

5.The applicant in her Notice of Motion only stated that she did not get a fair judgment.  In her written submissions of 3 July 2020, she merely repeated her claim that she would be in danger if she was refouled.  Other than that, she did not identify any errors in the Judgment.  These are therefore not viable grounds.

6.Though it has recently been held by the CFA in H v Director of Immigration [2020] HKCFA 22 that an applicant did not need Section 14AA leave to appeal to this Court in respect of a refusal of extension of time to bring an application for leave to judicial review, and technically an appeal can be brought to this Court by way of appeal out of time, it does not assist the applicant in this instance.

7.It has been held by Lam VP in Re Rashid [2020] HKCA 612 at [6] that:

(1)  Since the application is made in respect of the Court’s refusal of Section 14AA leave and it serves no purpose for an appeal to the CFA regarding such refusal of leave.  The reversal of a decision on Section 14AA leave would not automatically lead to success in an appeal against the decision of the Court of First Instance.  To achieve that the applicant needs to bring an appeal to this Court;

(2)  Due to lapse of time, the applicant needs an extension of time to bring an appeal to this Court and if such application is made, the Court will have regard to the merits of the intended appeal in deciding if extension should be granted.

8.However, having regard to our views on the lack of merit in her intended appeal as set out at paragraphs 18 and 19 of the Judgment, the Court will not grant extension of time for a futile appeal to be brought.

9.In the circumstances, we do not consider that there is any question of great general or public importance or otherwise which ought to be submitted to the CFA for determination.  Plainly, the statutory requirements under section 22(1)(b) are not met.

10.For these reasons, we refuse to grant leave to appeal to the CFA, and dismiss the applicant’s Notice of Motion.

The applicant acting in person