Re Padernal Rina Gortayo

CACV 196/2020

[2021] HKCA 1813

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 196 OF 2020

(ON APPEAL FROM HCAL 1625/2018)

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Before:  Hon Poon CJHC and Barma JA in Court

Date of Judgment:  6 December 2021

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J U D G M E N T

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

1.On 1 April 2021, this court (Poon CJHC and Barma JA)  handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the judge”)  on 5 June 2020 refusing leave to the applicant to apply for judicial review ([2021] HKCA 440). The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”)  dismissing her appeal from the decision of the Director of Immigration rejecting her non-refoulement claim.

2.The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.  We will not repeat them here.

3.The applicant subsequently applied, by a Notice of Motion filed on 30 July 2021, for leave to appeal to the Court of Final Appeal out of time.  The applicant stated in the Notice of Motion that:

“I want to apply for court justice as both my torture claims appeal decisions by immigration were not favourable as my judicial review was dismissed. I therefore want to apply for leave at the Court of Final Appeal to receive justice.”

4.In the affidavit filed on 30 July 2021, the applicant deposed that:

“I could not appeal to court on the day of hearing because I moved to a new house and want the court to reinstate my appeal…”

5.In the exhibit to the affidavit, the applicant explained why it is unsafe for her to return.  She also stated that she changed her address and did not receive the court order in time.

6.The applicant failed to comply with Practice Direction 2.1 and did not lodge the skeleton submission within time.  The applicant was therefore debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

7.Having considered the applicant’s Notice of Motion and affirmation, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

8.The applicant claimed that she has moved to a new address and therefore did not receive the court order in time.  This court has repeatedly held that it is the responsibility of an applicant to ensure that the address in court is up-to-date.  We are therefore of the view that the applicant has not provided any reasonable explanation for her delay in bringing the intended appeal. 

9.We nonetheless go on to consider the merits of the application.

10.The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters she has raised.  

11.Neither the Notice of Motion nor affirmation identify any supposed error in our judgment and they raise no ground that is reasonably arguable before the Court of Final Appeal.

12.We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

13.For these reasons, the Notice of Motion dated 30 July 2021 is dismissed.

The applicant acting in person