Re v. Thi Huong

CAMP 68/2022, [2023] HKCA 1369

On Appeal From [2021] HKCFI 3857

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 68 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1475 OF 2021)

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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 17 October 2022, this Court handed down decision ([2022] HKCA 1531) dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge KW Lung given on 29 December 2021 refusing her application for leave to apply for judicial review in respect of her non-refoulement claim.

2.On 16 February 2023, the applicant filed a notice of motion and affirmation applying for leave to appeal this Court’s order to the Court of Final Appeal out of time.  The applicant has not lodged any written submission.

3.Having considered the applicant’s notice of motion, and affirmation, 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 over three months.  The applicant did not explain in the notice of motion or supporting affirmation her delay.

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 that the judgment of the Court was unsatisfactory and the Immigration Department did not consider human rights.  The applicant stated factual and procedural matters that have been previously dealt with by the Board.  In her supporting affirmation, the applicant again made bare statements that a good ground of appeal was not necessarily considered at the leave stage and that there were merits to the case but without giving details as to what those good grounds or merits were.

9.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.

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

11.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