KAKOLE v. TORTURE CLAIMS APPEAL BOARD

CACV 74/2022

[2022] HKCA 630

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 74 OF 2022

(ON APPEAL FROM HCAL NO 780 OF 2019)

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J U D G M E N T

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

1.  On 1 June 2021, Deputy High Court Judge Bruno Chan made an order (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board dated 15 March 2019.

2.  On 9 February 2022, the Judge dismissed the Applicant’s summons of 16 July 2021 seeking an extension of time to appeal against the Order.

3.  On 14 February 2022, the Applicant filed a Notice of Appeal against the Order without having obtained an extension of time to appeal.

4.  On 14 April 2022, the Registrar of Civil Appeals wrote to the Applicant to inform her that she could not proceed to file the Notice of Appeal without having first obtained an extension of time to appeal from the Court of Appeal, and thus the Notice of Appeal was bound to be dismissed.  The Registrar of Civil Appeals also directed that if the Applicant contended otherwise, she was at liberty to lodge written submissions in support of her stance on or before 28 April 2022.

5.  In response, the Applicant filed her written submissions on 27 April 2022.  In those submissions, the Applicant merely set out the factual basis of her non-refoulement claim, but failed to justify why she was entitled to appeal the Order without first having obtained an extension of time to appeal.

6.  Under Order 53, r3(4) of the Rules of the High Court, Cap 4A, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.  The Applicant failed to do so, and therefore required an extension of time to appeal against the Order.  Following the Judge’s refusal of her application for extension of time to appeal, the Applicant could renew her application for extension of time by a fresh application to the Court of Appeal.  However, instead of seeking an extension of time from the Court of Appeal, the Applicant proceeded to directly file her Notice of Appeal on 14 February 2022.  The Notice of Appeal was improperly filed and, on this ground alone, is bound to be dismissed.

7.  For the sake of completeness, we should mention that we have considered the Judge’s decision refusing to grant leave to the Applicant to apply for judicial review ([2021] HKCFI 1562).  On the materials before us, we cannot see any proper basis for overturning the Judge’s decision.  Accordingly, even if the Applicant had made an application for extension of time to appeal, we would have rejected the application.

8.  In all, the Applicant’s purported appeal is rejected, and her Notice of Appeal is dismissed.