KHATUN MST ASMA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 471/2019

[2024] HKCFI 54

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 471 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 5 December 2023 (the “Summons”) seeking extension of time to appeal the order of this Court dated 27 April 2023 (the “Order”) refusing her application for leave to apply for judicial review.   

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 5 December 2023 when the Summons was filed, the application was six months and twenty-four 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 success 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.

Length of delay and reasons for the delay

4.  The application is six months and twenty-four days late.  It is very substantial in the context of a fourteen-day appeal period.  In the second paragraph of her supporting affirmation filed together with the Summons, the Applicant set out three basis of complaint or grounds of intended appeal:

(1)  she believed “the decision was reached unfairly, thereby denying [her] the opportunity to clarify [her case] and present [her] situation adequately;”

(2)  she has “deep concern regarding the lack of opportunity afforded to [her] as an unrepresented litigant in person during the proceedings before the High Court; and

(3)  “the absence of any correspondence from the Court regarding the dismissal of [her] leave to apply for judicial review”  and “as a result, [she] was not duly informed of the prescribed time limits within which [she] could file an appeal.

The rest of her affirmation is just an introductory sentence and a repetition of the above grounds.  The essence of the grounds of her intended appeal is that the Order was reached unfairly without giving her an opportunity to clarify her case and present her situation adequately (Grounds (1) and (2)).  The essence of her explanation for the delay is that she had never received any correspondence from the Court dismissing her leave application and was not informed of the time limit for appeal (Ground (3)).

Explanation for the delay

5.  The Applicant said she is a layman, does not know the time limit for appeal and the Court did not inform her about the time limit.  It is a well-established legal principle that ignorance of the law is not an excuse.  So is ignorance about the time limit for taking out any procedural steps.  Statutory time limits are made to be observed.  Being a layman or ignorance about procedure is not an explanation for delay.  However, the court and the law are not unreasonable.  The court will take those factors into account and grant indulgence in an appropriate case.  To enable the court to exercise its discretion to indulge, the person seeking indulgence must give a reasonable and credible explanation for the delay.  He must show he has acted reasonably in all the circumstances, for example, that the delay is due to circumstances beyond his control.  The explanation must be credible.  A mere assertion is not enough.  Reasonableness of an explanation has to be measured against the length of the delay.  The longer the delay, the more compelling the explanation must be.

6.  The delay of almost seven months is incontrovertible.  The Applicant said she never received any correspondence from the Court that her leave application had been dismissed.  That would be a complete answer, if credible.  If she had never received that information, how did she know she had to seek leave to appeal out of time.  But she never disclosed when she came to know about that.  Without that information, the Court has no basis against which to assess the actual length of the delay she has to account for and the reasonableness of her account.  She also never explained how she came to know that her leave application had been dismissed.  Without that information, the Court cannot test the credibility of her explanation.  Without these information, the Court cannot assess the reasonableness of her explanation.  The Court cannot assess how long she has been sitting on the Order without doing anything.  All that the Applicant has offered is a mere assertion unsupported by any fact.  Such empty assertion is of doubtful credibility.  This Court cannot decide whether to indulge.

7.  On credible fact, the court staff had sent the Order and Form CALL-1 which contains the reasons for the decision to the Applicant by post to her last known address in Portland Street.  The court staff are under very strict instructions to post such documents on the date stated on the documents.  These documents are both dated 27 April 2023.  The address stated on these documents is correct.  It is same as that shown in the Applicant’s summons and supporting affirmation.  The delivery by Hong Kong Post is usually very reliable and on time.  These documents have never been returned undelivered in the course of mail.  When the Applicant’s empty assertion is tested against these credible facts, this Court could only come to the conclusion that the Applicant’s assertion is incredible and the explanation is unreasonable.

The prospect of success

8.  The Applicant ground of appeal is that the Order was made unfairly without giving her an opportunity to clarify her case and present her situation adequately.  She did not provide any grounds of her application for leave to apply for judicial review.  All that she did was to annex a copy of the Decision to her supporting affirmation.  This Court invited her by letter dated 9 March 2021 to provide, among other things, all documents she relied on in support of her leave application.  The letter was first sent to her at her address in Pratas Street as stated in her Form 86.  She did not respond.  If she had anything she wished to clarify about her case and her situation, she could and should have done so by responding to the Court’s letter in her Form 86 and supporting affirmation.  She did not. 

9.  On the Court’s record, the Applicant had never reported any on change of her correspondence address.  This Court has no information whether and when she moved from her address as stated in her Form 86.  In Re Karamjit Singh[2] and Re Hasmi Rizwan Imran[3], the Court of Appeal held that it is the applicant’s duty to report his change of address to the Court.  If he did not, he has to bear the consequence of his neglect.  If the Applicant had moved out of the Pratas Street address before receiving this letter, she has to bear the consequence of her failure to update the Court of her address.

10.  However, out of caution, this Court obtained her up-to-date address in Portland Street from the Immigration Department on 12 December 2022.  On 25 April 2023, this Court informed her by post to her address in Portland Street that the decision relating to her leave application will be ready for handing down soon.  The Court’s letter was not returned through the course of mail.  There is nothing to suggest that the Applicant did not receive the letter.  If she had anything she wished to clarify about her case and her situation, she should and would have taken up the opportunity to do so before the Court makes a decision.  Again, she did not respond.  Hence, as mentioned in Paragraph 18 of the Form CALL-1, “in the absence of specific or proper grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision”.  Against such factual background, how could the Applicant now complain that the Order was made unfairly without giving her an opportunity to clarify her case and present her situation adequately?

11.  Furthermore, even as of now, the Applicant has not given any particulars of the unfairness complained of, what she had wished to clarify about her case and her present situation.  There is no particulars in her grounds of appeal. Her grounds have conviction at all and her intended appeal has no prospect of success. 

Conclusion

12.  Despite generous allowance in her favour and despite the Court’s readiness to indulge, the Applicant has failed badly in explaining the very substantial delay of almost seven months in taking out this intended appeal and has failed to show that her intended appeal has any prospect of success.  In view of the conclusions reached above, there is no need to consider the issue of prejudice to the Applicant if extension of time is refused.  For the above reasons, leave to appeal out of time is refused.