ETIK SOLEKAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 7/2019

[2024] HKCFI 3165

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 7 OF 2019

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D E C I S I O N

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Introduction

1.  This is the Applicant’s application by summons filed on 14 October 2024 seeking extension of time to appeal the order of this Court dated 21 April 2023 (the “Order”)  refusing her application for leave to apply for judicial review (the “leave application”)  of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office.  

Legal principles applicable to application for extension of time to appeal

2.  Under Order 53, rule 3(4)  of the Rules of the High Court, an appeal against any decision of the court refusing an application for leave to apply for judicial review shall be made within fourteen days after the date of the decision.  Thus, by 14 October 2024 when the Summons was filed, this application was seventeen months and ten days out of time.  Leave to appeal out of time is required. 

3.  In Jagg Singh and Torture Claims Appeal Board / Non-refoulement Claims Petition Office[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1)  the length of the delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the respondent if extension of time was granted.  Usually, prospect of success of the intended appeal is the single factor which carries most weight in deciding whether to grant extension of time.  The fourth factor needs to be considered only if the sum total of the first three are in favour of granting extension of time.

Discussion

4.  The application is more than seventeen months out of time, which is very substantial in the context of a 14-day period of appeal.  In her supporting affirmation, the Applicant claimed she had never received the Order.  To assist her to present a proper application for extension of time to appeal, directions were given to her to file an affirmation or a statement within 14 days of the directions setting out, inter alia:

(1)  the date when and circumstances under which she first came to know about the Order;

(2)  if the delay is related to change of address, the date and particulars of the change since 22 December 2022 when the Order and Form CALL-1 were sent, and the date when she informed the Court and the Immigration Department of the change, and

(3)  the grounds of her intended appeal. 

As at the date of this decision, the Applicant has not responded.

5.  The Order and Form CALL-1 had been sent to the Applicant’s last known address in Shamshuipo on 21 April 2023 as discovered from the Immigration Department in December 2022.  The Applicant had never informed the Court of her change of address since filing her leave application in January 2019.  The Court noted from her Summons and supporting affirmation that she is currently detained in Tai Lam Centre for Women.  She had never informed the Court of her change of address since filing her leave application.  If she genuinely had not received the Order and Form CALL-1, it could possibly be due to her failure to inform the Court of her change of address.  But without her complying with the directions, this Court could have no way to know.  This Court could not assess the reasonableness of the long delay.   

6.  As the Applicant has not put forward the grounds of her intended appeal, this Court could not assess if her intended appeal has any prospect of success.

Conclusion

7.  In conclusion, despite clear directions having been given to the Applicant to provide information required to support an application for extension of time, she wholly failed to provide any information to enable this Court to determine if she has a reasonable explanation for the very substantial delay of more than seventeen months and to assess the prospect of success of her intended appeal.  The only inference this Court could draw is that she has neither a reasonable explanation for the delay nor grounds of appeal with prospect of success.  Her application is just an abuse of process which is calculated to delay her refoulement process.  In the circumstances, there is no need to consider prejudice to the respondent.  Accordingly, her application for extension of time is refused.