MAHASATHU HEWAGE MACKSHI ROHAN SILVA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 524 /2024, [2026] HKCA 61

On appeal from [2024] HKCFI 3020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 524 OF 2024

(ON APPEAL FROM HCAL NO 1967 OF 2019)

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J U D G M E N T

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

Background

1.  This is the applicant’s application by Notice of Motion dated 30 July 2025 for leave to appeal to the Court of Final Appeal against the order made by Kwan VP on 3 February 2025.  By that order, it was directed that the time for the applicant to comply with the unless order dated 14 January 2025 be extended to 17 February 2025 by 4 pm and that the unless order will take effect without further order if no appeal bundle is lodged by the applicant by the extended time and date.  This order was made against the background that the applicant had failed to lodge appeal bundle despite the directions issued by the Registrar of Civil Appeals on 3 December 2024 and the unless order made by Kwan VP on 14 January 2025.  Time extension was granted upon the applicant’s application.  The appeal was dismissed on 17 February 2025 as a result of the applicant’s failure to comply with the unless order by the extended deadline. 

2.  On 22 September 2025, the Registrar of Civil Appeals invited the applicant to consider applying for relief from sanction pursuant to Order 2 rule 4 of the Rules of the High Court as the appeal was dismissed on 17 February 2025 by reason of the applicant’s failure to comply with the unless order.  It was directed that such an application should be made by summons by 6 October 2025 together with a supporting affirmation, and the Court will consider such summons for relief together with his Notice of Motion.  The Registrar further directed that if no application for relief from sanction is made by the prescribed date, the Court will proceed with the Notice of Motion on the basis that no such application will be made and determine the Notice of Motion on paper without an oral hearing.

3.  The applicant did not take out any application for relief from the sanction imposed by the unless order, nor did he file any affirmation for such application by the prescribed deadline.

4.  The Court of Appeal would therefore deal with the Notice of Motion on the basis that the applicant does not wish to seek relief from sanction.  Having considered the papers, we think it appropriate to determine the Notice of Motion on paper.

The grounds of appeal

5.  The applicant stated in the Notice of Motion that the decision was “unsatisfied” and “totally unfair”, and the judge favoured the decisions of the Director and the Board but ignored many things.

6.  He stated the following further contentions in his submissions:

(1)     The rejection of his asylum claim fails to consider the grave risks he faces in his country.  The decision is illegal, unlawful, self-contradictory, capricious, devoid of cogent reasoning and against the facts and circumstances of the case.  It is the result of misreading and non-reading.  It is perverse, arbitrary and harsh in nature;

(2)     The judge failed to attain high standard of fairness required by the Wednesbury test in failing to take into account there is still very serious problem in the applicant’s country as various human right organisations had compiled reports that are testament to the applicant’s assertions;

(3)     The points in his case were ignored and the decisions were not transparent.  The situation of his country is much different from what the decision makers might think.  It is hard for him to live and stand in front of his enemies.  His life will become worse if he is refouled and he is not satisfied with the decisions.

Analysis and disposition

7.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), 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.  Good grounds have to be shown by the applicant for the court to grant an extension of time pursuant to section 24(5) of the Ordinance (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

8.  Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.

9.  The applicant was late for more than three months in taking out the present application.  He explained that he did not receive any further documents to submit, he was unaware of the appeal rules, he was detained in the detention centre and he does not have enough money to hire a lawyer to apply for him.  We do not think any of these reasons can justify the substantial delay in the present case.

10.  In any event, the applicant did not put forward any ground for contending that the unless order was wrongly made.  The applicant had already been given sufficient time and opportunity to lodge appeal bundles.  He failed to prosecute the appeal with due diligence and disobeyed the directions of the court, which hampered the processing of the appeal.  

11.  Moreover, the applicant’s grounds and submissions are just bare assertions which are not supported by particulars or evidence.  He has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b).  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

12.  For the above reasons, we dismiss the Notice of Motion filed on 30 July 2025.