VIJAY v. TORTURE CLAIMS APPEAL BOARD/ NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 261/2020

[2021] HKCA 1003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 261 OF 2020

(ON APPEAL FROM HCAL 1872/2018)

__________________________

BETWEEN

__________________________

________________________

JUDGMENT

________________________

Hon Lam VP (giving the Judgment of the Court):

1.  On 20 May 2021, the Applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal (“CFA”) against this Court’s order of 19 November 2020 that unless the Applicant applies for leave to appeal out of time before 4:00pm on 3 December 2020, the appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) of 24 June 2020 shall be struck out and dismissed automatically on 3 December 2020 at 4:00pm. The Applicant failed to comply with this unless order, thus the appeal was struck out and dismissed on 3 December 2020.

2.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 provides that an appeal shall lie to the CFA at the discretion of this Court or the CFA 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 CFA for decision.

3.  In his Notice of Motion, the Applicant stated that the Court erred by failing to apply the principle of irrationality to the Judge’s decision as well as by failing to apply the principle of procedural unfairness to that decision because reasons were required for that decision. He also filed an affirmation on 20 May 2021 stating that he had a good ground of appeal without specifying what such ground was.

4.  Despite the acknowledgment by the Applicant on 20 May 2021 of the requirement under Practice Direction 2.1 and the directions of the Registrar of Civil Appeals on 24 May 2021, the Applicant did not lodge any written submissions in support of this application. 

5.  It is trite law that an appeal cannot be brought out of time without first applying for extension of time, see Fok Hing (HK) Trading Ltd v Gunawan-Indra CACV 74/2014, 4 July 2014; Raymond Wong v Bar Council [2020] HKCA 1036 at [28].  The Applicant has not raised any discernible or arguable ground for disturbing the unless order of 19 November 2020.  Not explanation has been proffered by him as to the non-compliance with the unless order.  Nor did he seek relief from the sanction.  The intended appeal is wholly unmeritorious.

6.  In the circumstances, we do not consider that there is any question of great general or public importance or which otherwise ought to be submitted to the CFA for determination.

7.  For these reasons, we refuse to grant leave to appeal to the CFA and dismiss the Applicant’s Notice of Motion.