RE MAROOF AHMED

CACV 267/2020

[2021] HKCA 509

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 267 OF 2020

(ON APPEAL FROM HCAL NO. 400 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  On 15 July 2020, the applicant filed a notice of appeal in this Court to appeal the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 13 November 2019[1] refusing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 5 January 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 10 January 2017 rejecting his non-refoulement claim.

2.  Under Order 53 rule 3(4) of the Rules of the High Court, Cap. 4A, the applicant had 14 days within which to appeal the Judge’s decision, which expired on 27 November 2019.  The notice of appeal was out of time by more than seven months.

3.  Under Order 59 rule 15 of the Rules of the High Court, the period for serving notice of appeal may be extended by the court below.  The applicant, however, had not made any application for extending the time to appeal before he filed the notice of appeal.

4.  On 18 September 2020, the Registrar of Civil Appeals drew to the applicant’s attention that since his appeal was lodged without first obtaining an order for extension of time from the Judge, it was liable to be dismissed.  The applicant was further directed to lodge written submission to show cause why his appeal should not be dismissed.   

5.  By letter dated 7 October 2020, the applicant made an application to the Court of Appeal for an extension of 21 days to file his notice of appeal.  He stated that he did not know the deadline because of the COVID situation, and when he eventually made the filing on 13 July 2020 he was told by a court staff that he was out of time and he had to applied for extension of time.

6.  Under Order 59 rule 14(4) of the Rules of the High Court, applications which may be made either to the court below or to the Court of Appeal (such as applications for extension of time) shall not be made in the first instance to the Court of Appeal, except where there are special circumstances which make it impossible or impracticable to apply to the court below.  

7.  On 30 November 2020, the Registrar of Civil Appeals drew the applicant’s attention to Order 59 rule 14(4), pursuant to which his application for extension of time should first be made to the Judge.  The applicant was further directed to lodge written submission to show cause why his application to the Court of Appeal for extension of time should not be dismissed.

8.  The applicant lodged his written submission on 15 December 2020.  He stated in the written submission that, as a litigant in person, he was not aware of the procedure.  He argued that the court had made it impracticable for him to apply to the court below because his notice of appeal had been accepted for filing by the court registry and assigned a case number.

9.  What the applicant stated in his written submission cannot amount to special circumstances making it impossible or impracticable for him to apply to the Judge for an extension of time to appeal.  We are not satisfied that the applicant has made out a case for applying directly to this Court for an extension of time.  We refuse the applicant’s application to extend time by letter dated 7 October 2020. 

10.  We would further point out that even if we were to allow the applicant to apply directly to this Court for extension of time to appeal, we would have refused the application.  First, there is no satisfactory explanation for the delay in filing the appeal.  The applicant has not explained what steps he had taken to find out the procedure and time limit for making an appeal.  Also, the public health situation was normal and the court registry was under normal operation in November 2019 when the Judge’s decision was handed down.  Second and more importantly, the notice of appeal and the applicant’s affirmation only asserted that the applicant’s life will be in danger and he would be tortured and killed if he were to return to his home country.  These are not viable grounds of appeal having regard to the relevant principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14. 

11.  As the present appeal was served and filed out of time without leave of the court, it is not competent.  Accordingly, we order that the notice of appeal be struck out.