RE OTUNU PATTALE MULACHARIGE NILUKA K. J.

HCAL 2877/2018

[2020] HKCFI 2607

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2877 OF 2018

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D E C I S I O N

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1.  On 14 May 2020 Deputy High Court Judge Lung (“the Judge”) refused to extend time for the applicant to file her late application for leave to apply for judicial review (“the Judge’s decision”) of the decision of the Torture Claims Appeal Board (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s non-refoulement claim. At the same time, the Judge gave a direction (“the Judge’s direction”) that “if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal” (emphasis added). The Judge’s direction followed the judgment of the Court of Appeal in MI & IYW v Permanent Secretary for Security [2018] 4 HKC 440.

2.  In compliance with the Judge’s direction, the applicant by a summons issued on 27 May 2020 sought leave to appeal against the Judge’s decision.

3.  The Court of Final Appeal held in the recent case of H v Director of Immigration and AH v Director of Immigration, FACV 1 & 2 of 2020, [2020] HKCFA 22 given on 14 July 2020 that an application for extension of time in order to apply for leave to commence judicial review is not a discrete application, separate from the application for such leave [39]. An applicant does not need leave under Section 14AA High Court Ordinance to appeal to the Court of Appeal in respect of a refusal of extension of time to bring an application for leave to judicial review [53].

4.  Following the CFA’s decision, the Judge’s decision should be properly considered as a refusal of leave to commence judicial review. The Judge’s refusal of extension of time did not need leave to appeal to the Court of Appeal.  The applicant could appeal from the Judge’s decision as of right within 14 days of his order: Order 53 r.3(4) RHC.  In other words, the correct procedure was that the applicant should have lodged her appeal from the Judge’s decision by way of Notice of Appeal on or before 28 May 2020, instead of following the Judge’s direction and applying for leave to appeal.

5.  Complying with the Judge’s direction, the applicant did on 27 May 2020 apply to the Judge by summons for leave to appeal. In fact, by then she would have been in time to file a Notice of Appeal had she followed the proper procedure instead of the Judge’s direction. However, the notice to be filed now will be out of the 14-day period and the applicant needs an extension of time to bring an appeal to the Court of Appeal.

6.  In all the circumstances, I consider it appropriate to treat the applicant’s summons for leave to appeal as a summons to extend time to file a Notice of Appeal and determine it without a hearing. I will grant the application extending the time for 14 days from this order for her to file the Notice of Appeal.