Re Akhter Mst Sharmin

CAMP 68/2021

[2021] HKCA 1826

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 68 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2461 OF 2018)

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Before:  Hon Chu and M Poon JJA in Court

Date of Judgment:  10 December 2021

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J U D G M E N T

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

1.On 30 August 2021, this court handed down judgment ([2021] HKCA 1249)  dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge Lung given on 29 July 2020 refusing her application for leave to apply for judicial review in respect of her non-refoulement claim.

2.On 20 October 2021, the applicant filed a Notice of Motion together with an affirmation to apply for leave to appeal this court’s judgment to the Court of Final Appeal.  The applicant has also lodged a written submission on 1 November 2021.

3.Having considered the applicant’s Notice of Motion, affirmation and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.The applicant’s Notice of Motion is out of time, as section 24(2)  of the Hong Kong Court of Final Appeal Ordinance Cap. 484 stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from.  The deadline for filing the Notice of Motion expired on 27 September 2021[1].

6.Under sections 24(5)  and 24(6)  of the Hong Kong Court of Final Appeal Ordinance, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period.  In the exercise of our discretion whether or not to extend the appeal period, we should consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party. 

7.In the present case, the applicant’s notice of motion is late by about three weeks, which is not insubstantial.  The applicant explained in her affirmation that due to her being uneducated, the language problem and the COVID situation, it had taken her longer to get help to prepare the application.

8.As to the merits of the intended appeal, 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 Notice of Motion set out the following grounds in support of the application:

(1)  There is some error in the decision. The decision maker just relied on country of origin information (COI)  and facts that favour a dismissal of the applicant’s claim.

(2)  The judges were wrong as a matter of law for not applying the principle of irrationality to the Director of Immigration’s decision.

(3)  The actual situation is different than what is mentioned in the COI.  The immigration officer and the courts prefer to ignore the overwhelming evidence of the violence towards the minorities.

(4)  The Judge did not apply the law properly.

10.The written submission gave an outline of the applicant’s claim, followed by extensive quotes of the provisions of the International Covenant on Civil and Political Rights, Hong Kong Bill of Rights Ordinance, Basic Law and United Nations Convention Against Torture as well as decisions on the high standard of fairness, extended meaning of state acquiescence and Wednesbury unreasonableness.  It went on to contend that (i)  high standard of fairness is required because the decision has the effect of finally disposing of the applicant’s claim, making her liable to be removed; and (ii)  at common law, there are minimum standards of procedural fairness and the decision maker is under a duty to act fairly.

11.We are of the view that the grounds and arguments put forward by the applicant do not constitute viable grounds for giving leave to appeal.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b)  of the Ordinance. Further, for the reasons we gave in our judgment, particularly [20] and [21], the matters put forward in the Notice of Motion have no merits.  As to the written submission, it has not been shown how the provisions and legal propositions quoted in it relate to the applicant’s case.    

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

13.As the statutory requirements for giving leave to appeal are not met, we accordingly dismiss the Notice of Motion.

The applicant, unrepresented, acting in person