TUNGPALAN CELY TABIEROS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1531/2019

[2024] HKCFI 2945

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1531 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 26 July 2024 for extension of time to appeal the order of this Court dated 14 May 2024 (the “Order”) refusing to grant her leave to apply for judicial review of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”).

The Law

2.  Under Order 53, rule 3(4) of the Rules of the High Court, 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 is about one and half months out of time. 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 delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted. If the delay is not substantial, it would be readily condoned if there is some credible explanation and an arguable ground of appeal.

Length of delay and explanations for the delay

3.  The application for leave to appeal is one month and fifteen days out of time. The delay is substantial. The Applicant had been given directions to file a statement or affirmation explaining her reasons for the delay, including the date and circumstances when she received the Order and the grounds of her intended appeal. She did not respond.

4.  In her supporting affirmation, the Applicant said that she failed to appeal as she did not get the decision on time. Impliedly, she had received the Order and Form CALL-1. Her explanation for the delay was that she did not receive them on time. The directions were designed to enable her to explain the date when and circumstances under which she came to receive the Order or informed of the outcome of her leave application. Without these information, the Court cannot assess the length of the delay and the reasonableness of the explanation. In the absence of her response, this Court could only come to the conclusion that she has no explanation for the substantial delay.

Prospect of success of the intended appeal

5.  Despite clear direction requiring the Applicant to state the grounds of her intended appeal, the Applicant did not put forward any specific grounds of appeal by complying with the directions. In her supporting affirmation she did not state how and what the Board or this Court had gone wrong. Instead, she only said she disagreed with the decision of the Board and that she has a daughter in Hong Kong. Obviously, she is not satisfied with the Board’s decision that she is not entitled to non-refoulement protection under any of the four applicable grounds and this Court’s decision refusing her leave to review the Board’s decision. As was mentioned in the Form CALL-1, the Board basically accepted her evidence and assessed her entitlement on the basis of the factual case as she asserted. It was on that basis that the Board found she is not entitled to protection. These are finding of facts by the Board. In effect, the Applicant is seeking to challenge the Board’s finding of fact under the guise of judicial review and this Court’s finding that she had no valid grounds to do so.

6.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The Board’s decision is basically the product of its applying the law applicable to non-refoulement protection to the facts it found. In a judicial review, the court will only scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[2]. In the absence of any specific grounds challenging the Court’s decision in refusing leave to apply for judicial review, the court can only focus on the above vitiating elements in the Board’s decision and its own decision in refusing leave.

7.  I had rigorously examined the decision, the papers and the evidence with anxious scrutiny and satisfied myself that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the issues; the burden of proof and standard of proof; and observed a very high standard of fairness. I was satisfied that the Board’s decision had not been so vitiated. The Applicants have not made any specific challenge as to what was wrong with this Court’s decision in refusing him leave to apply for judicial review. Having carefully re-examined the Call-1 Form with anxious scrutiny, I affirmed that conclusion. On the material now available, the Applicant’s intended appeal has no prospect of success at all.

Prejudice to the respondent

8.  As for prejudice to the proposed respondent, it is unlikely that this issue would be explored in an ex parte application for extension of time. But the prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed in the absence of a properly formulated ground of appeal with some prospect of success is obvious. The application is an abuse of legal process and would encourage other claimants to indulge in such abuse. It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court. It would render it difficult for the Director to perform his duty of maintaining immigration control. Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment. This application does not raise any questions of general public importance. To allow such a challenge to proceed may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

9.  The delay is substantial, the intended appeal has no prospect of success. It is a clear abuse of legal process to challenge a decision without proper and good grounds of appeal and which is bound to fail. For all these reasons, the application for extension of time to appeal is refused.