Re Leoncio Julie Madriaga

CAMP 418/2021

[2022] HKCA 1502

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 418 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1941 OF 2018)

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Before :  Hon Cheung and G Lam JJA in Court

Date of Decision :  11 October 2022

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1.On 25 April 2022, this Court handed down a decision ([2022] HKCA 569) dismissing the applicant’s renewed application to extend time to appeal an order of Deputy High Court Judge C P Pang given on 23 December 2020 refusing her application for leave to apply for judicial review in respect of her non‑refoulement claim.

2.On 26 May 2022, the applicant filed a notice of motion and affidavit applying for leave to appeal this Court’s order to the Court of Final Appeal out of time. The applicant has lodged written submission.

3.Having considered the applicant’s documents, 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 decision.  We will not repeat them.

5.Section 24(2) of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’) (Cap. 484) provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Section 24(5) further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

6.The applicant’s present application is out of time by three days.  The applicant did not explain in the supporting affidavit her delay, but simply said that the notice of motion was out of time.

7.As to the merit of the intended appeal, section 22(1)(b) of the HKCFAO 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.

8.The notice of motion stated:

‘ DIRECTOR OF IMMIGRATION AND TORTURE CLAIM APPEAL BOARD REJECTED MY CLAIM FOR NON-REFOULEMENT. THE HIGH COURT AND THE COURT OF APPEAL DISMISSED MY APPLICATION FOR LEAVE. I AM NOT TOTALLY SATISFIED. I WANT TO GO TO THE COURT OF FINAL APPEAL.’

9.In the applicant’s written submissions, she stated that she would be killed by her enemies if she was to return home and her country’s authorities are corrupt.  She stated that her case is the same as all asylum seekers in Hong Kong.

10.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 HKCFAO.

11.Nor do we see any basis for the ‘or otherwise’ limb under section 22(1)(b).

12.As the statutory requirements for giving leave to appeal are not met, the intended appeal has no merit and there is no basis for us to extend the time for the filing of the notice of motion.  Accordingly, we dismiss the notice of motion.

The applicant, unrepresented, acting in person