VERGAVERA LAVILLE REBADOMIA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 178/2022

[2022] HKCFI 2538

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 178 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  Extension of time to apply for leave to apply for Judicial Review be refused; and

2.  Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.   This is the Applicant’s application by Form 86 dated 16 February 2022 but filed on 4 March 2022 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (the “Board”) dated 10 September 2020 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 27 December 2019 (the “Notice”).  Though the Director is named as a proposed interested party, no relief is sought in respect of the Notice or any decision of the Director. 

2.  Order 53, rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.  An application made after three months is deemed to have been made with undue delay.  By 4 March 2022, her application is one and half years out of time.  Her application was deemed to include an application for leave to apply out of time.

3.  To obtain extension of time for making an application, the court takes into account (i) the length of the delay; (ii) the explanation for the delay; (iii) merits in the substantive application; (iv) the balance of prejudice to the applicant and the proposed respondent if extension of time is granted; and (iv) whether the application raises questions of general public importance which are likely to have to be resolved by the courts in any event: see AW and Director of Immigration[1].

4.  Merits is usually a very important factor.  Where the delay is not very substantial, merits is usually the determinant factor.  But it was also held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[2] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”.  The delay in this case is so substantial that leave may be refused on this ground alone.

Explanation for the delay

5.  The Applicant’s explanation for the delay given at this hearing is extremely vague and fragmented.  She said she was held in prison custody and had never received the Decision until she was told by an officer of the Correctional Services Department.  When asked when was she put in custody, she said it was 7 December 2021.  That was more than 14 months after the date of the Decision.  That explanation fell apart.

6.  When going over the procedural events with her with a view to assist her to make out a reasonable explanation, she acknowledged that she received the notice of hearing from the Board, she attended the secretariat of the Board at the hearing day and received notice that the hearing was rescheduled because of social distancing requirement, and that she did not attend the rescheduled hearing because she was afraid.  Then, she tried to explain that she had been moving from Tsimshatsui to Mongkok and then Yaumatei.  She could not provide the date of the moves.  Her explanation could not fit in with the fact that the Decision was issued more than fourteen months before she was put in custody.  She also admitted that she had not informed the Board of her change of address.  Even if she had not received the Decision, she has to bear the consequence of the non-receipt: Karamjit Singh[3].

7.  The Applicant had no difficulties receiving the notice of hearing from the Board.  The delivery service of Hong Kong Post is usually very reliable.  It just begs belief that the Applicant did not receive the Decision which was sent to the same address within four months of the notice of hearing.  Accordingly, the Court found the Applicant had no reasonable explanation for the very substantial delay.

8.  The Court therefore refused to grant the Applicant extension of time to apply and her application for leave to apply for judicial review was refused.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1