Re Marasingha Balagallage Kusumawathie Marasingha

CACV 535/2020

[2021] HKCA 508

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 535 OF 2020

(ON APPEAL FROM HCAL NO. 1966 of 2018)

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Before: Hon Cheung and Chu JJA in Court

Date of Judgment: 20 April 2021

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.On 30 September 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 1 September 2020[1] refusing her application for leave to apply for judicial review.

2.The intended judicial review is against (1) the decision of the Director of Immigration (“the Director”) dated 3 February 2017 refusing to re-open her non-refoulement claim which had been closed consequential upon her request to withdraw the claim made on 27 September 2016, and (2) the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 19 June 2018 dismissing her appeal against the Director’s decision. 

3.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 15 September 2020.  The notice of appeal was out of time by 15 days.

4.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.  It is further provided in Order 59 rule 14(4) of the Rules of the High Court that 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.  

5.The applicant had not applied for extension of time to appeal before she filed the notice of appeal.

6.On 2 December 2020, the Registrar of Civil Appeals drew the applicant’s attention to the above provisions in the Rules of the High Court (see §§3 and 4 above).  It was further pointed out that because her appeal was served and filed without first obtaining an order for extension of time, it was liable to be dismissed.  The applicant was directed to lodge written submission to show cause why her appeal should not be dismissed.   

7.The applicant lodged a written submission dated 16 December 2020. 

8.In her submission, the applicant asked for an extension of time.  She argued that her notice of appeal was not out of time because (1) the Judge’s order was not delivered to her postal address and it was upon being informed by the immigration officer that she came to court to retrieve the court documents; and (2) she had made enquiry at the Appeals Registry and was advised to lodge her notice of appeal.  She was told there was no need to file a summons in that due to the pandemic a 30-day’s extension of time was granted. 

9.As pointed out by the Registrar of Civil Appeals, the applicant’s application for extension of time should have been made to the Judge in the first place.  The applicant has not shown any special circumstances making it impossible or impracticable making it impossible or impracticable for her 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 her submission dated 16 December 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. 

11.First, although the delay is not serious, there is no satisfactory explanation for it.  The Form CALL-1 containing the Judge’s decision and the sealed order were mailed to the address that had been confirmed by the applicant at the hearing on 24 June 2020 before the Judge. The address is the same as the applicant’s address stated in the notice of appeal.  The Court’s documents have not returned by the Post Office. 

12.Second and more importantly, we do not find the grounds stated in the notice of appeal to have any prospect of success.  The notice of appeal claimed that the decision makers failed to adhere to the high standards of fairness and their duty to act fairly, and asserted that the judge failed to make sufficient enquiry or invite the applicant to give further information before finalising his decision and concluding that her grounds were broad and vague.  These grounds, however, bear no relevance to the reasons given by the Judge for refusing her leave to apply for judicial review.  In particular, the Judge found that the Board had in its detailed decision correctly identified and applied the law required for re-opening a withdrawn non-refoulement claim and properly considered the written and oral evidence provided by the applicant, and that there was no public law ground to disturb the Board’s decision.  It is also to be noted that the applicant had not put forward any ground for seeking relief in her application for judicial review.  As the grounds of appeal have no prospect of success, it would be futile to extend the time to appeal. 

13.Since 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.

The applicant, unrepresented, acted in person.