Case Detail

KAKOLE v. TORTURE CLAIMS APPEAL BOARD

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[2022] HKCA 1077-EN-2022-08-18

KAKOLE v. TORTURE CLAIMS APPEAL BOARD

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CACV 74/2022

[2022] HKCA 1077

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 74 OF 2022

(ON APPEAL FROM HCAL NO 780 OF 2019)

________________________

BETWEEN
	KAKOLE	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

________________________

Before: Hon Au and Chow JJA in Court

Date of Judgment: 18 August 2022

_______________

J U D G M E N T

_______________

Hon Chow JA (giving the Judgment of the Court):

1. On 12 May 2022, this Court gave its judgment (“the CA Judgment”) dismissing the Applicant’s Notice of Appeal filed on 14 February 2022 against the order of Deputy High Court Judge Bruno Chan dated 1 June 2021 refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board dated 15 March 2019.

2. The Applicant now applies by Notice of Motion dated 22 June 2022 for leave to appeal the CA Judgment to the Court of Final Appeal. In the Notice of Motion, the Applicant states as follows:

“Director of Immigration and Torture Claim Appeal Board rejected my claim for non-refoulement. The High Court and the Court of Appeal dismissed my application for leave. I am not totally satisfied. I want to go to the Court of Final Appeal.”

3. The Applicant has not filed any submissions in support of the application for leave to appeal, contrary to the directions of the Registrar of Civil Appeals dated 22 June 2022.

4. Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Final Appeal or the Court of Appeal in any civil cause or matter if, in the opinion of the Court of Final Appeal or the Court of 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.

5. No question of great general or public importance involved in the proposed appeal is identified in the Notice of Motion. We are unable to see any such question being involved in the proposed appeal. We are satisfied that the intended appeal has no merits and no reasonable prospect of success. There is also no basis to grant leave to appeal on the “or otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

6. Accordingly, the application for leave to appeal is refused and the Notice of Motion is dismissed.

(Thomas Au)
Justice of Appeal

(Anderson Chow)
Justice of Appeal

The Applicant, acting in person

CACV 74/2022

[2022] HKCA 630

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 74 OF 2022

(ON APPEAL FROM HCAL NO 780 OF 2019)

____________________

BETWEEN
	KAKOLE	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

____________________

Before:

Hon Au and Chow JJA in Court

Date of Written Submissions:	27 April 2022
Date of Judgment:	12 May 2022

_________________

J U D G M E N T

_________________

Hon Chow JA (giving the Judgment of the Court):

1. On 1 June 2021, Deputy High Court Judge Bruno Chan made an order (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board dated 15 March 2019.

2. On 9 February 2022, the Judge dismissed the Applicant’s summons of 16 July 2021 seeking an extension of time to appeal against the Order.

3. On 14 February 2022, the Applicant filed a Notice of Appeal against the Order without having obtained an extension of time to appeal.

4. On 14 April 2022, the Registrar of Civil Appeals wrote to the Applicant to inform her that she could not proceed to file the Notice of Appeal without having first obtained an extension of time to appeal from the Court of Appeal, and thus the Notice of Appeal was bound to be dismissed. The Registrar of Civil Appeals also directed that if the Applicant contended otherwise, she was at liberty to lodge written submissions in support of her stance on or before 28 April 2022.

5. In response, the Applicant filed her written submissions on 27 April 2022. In those submissions, the Applicant merely set out the factual basis of her non-refoulement claim, but failed to justify why she was entitled to appeal the Order without first having obtained an extension of time to appeal.

6. Under Order 53, r3(4) of the Rules of the High Court, Cap 4A, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. The Applicant failed to do so, and therefore required an extension of time to appeal against the Order. Following the Judge’s refusal of her application for extension of time to appeal, the Applicant could renew her application for extension of time by a fresh application to the Court of Appeal. However, instead of seeking an extension of time from the Court of Appeal, the Applicant proceeded to directly file her Notice of Appeal on 14 February 2022. The Notice of Appeal was improperly filed and, on this ground alone, is bound to be dismissed.

7. For the sake of completeness, we should mention that we have considered the Judge’s decision refusing to grant leave to the Applicant to apply for judicial review ([2021] HKCFI 1562). On the materials before us, we cannot see any proper basis for overturning the Judge’s decision. Accordingly, even if the Applicant had made an application for extension of time to appeal, we would have rejected the application.

8. In all, the Applicant’s purported appeal is rejected, and her Notice of Appeal is dismissed.

(Thomas Au)
Justice of Appeal

(Anderson Chow)
Judge of Appeal

The Applicant, acting in person