Re Mwajuma Patson Mwanyakule

CAMP 97/2020

[2021] HKCA 334

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 97 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 585 OF 2018)

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Before: Hon Yuen, Barma and Au JJA in Court

Date of Written Submissions:  11 February 2021

Date of Judgment: 22 March 2021

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.This court (Hon Yuen and Au JJA) handed down judgment on 14 January 2021 ([2021] HKCA 50) dismissing the applicant’s application to extend time to appeal an order of DHCJ Bruno Chan (“the Judge”) given on 19 July 2019 refusing to give the applicant leave to apply for judicial review in respect of her non‑refoulement claim.

2.On 21 October 2019, the applicant had filed a summons in the Court of First Instance for extension of time to appeal, which the Judge dismissed on 29 June 2020. 

3.On 13 July 2020, the applicant filed a summons in this court, which as mentioned earlier we dismissed on 14 January 2021.  The facts and issues in the intended appeal before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

4.On 27 January 2021, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal. 

5.The Notice of Motion contains the following grounds of appeal:

“1. The learned Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration refusing my application for Judicial Review.

2. There is some error in law in my decision. The decision maker just relied on COL information any my previous facts, which were favour on rejecting my claim.

3. Actual life occur different situation then what is mentioned in COL Information. Officer and courts prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining.

4. The Judge did not apply the law properly.”

6.On 28 January 2021, the Registrar of Civil Appeals directed that the applicant shall lodge her written submissions on or before 11 February 2021, and the Notice of Motion shall be determined on paper only without an oral hearing.  We agree it is appropriate to determine this application on paper. 

7.The applicant lodged her written submissions on 11 February 2021 in which she quoted passages from ST v Director of Immigration^[1] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  She further submitted that “high standards of fairness” applied to the determination of a non-refoulement claim and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility. Lastly, she referred to section 37ZT of the Immigration Ordinance (Cap. 115) which is about the late filing of notice of appeal to the Board. However, she did not explain and elaborate how the aforesaid cases and statutory provision were related to or would assist her application to this court.

8.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance provides that leave to appeal to the Court of Final Appeal may 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.

9.The applicant’s intended appeal has no merits.  No question of great general or public importance has been identified as required by s.22(1)(b) of the HKCFAO.     

10.Nor do we see any basis for the “or otherwise” limb under section 22(1)(b).

11.By reason of the above, the Notice of Motion filed on 27 January 2021 is dismissed.

The applicant, unrepresented, acting in person