SUSIANA AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2357/2018

[2023] HKCFI 973

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2357 OF 2018

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D E C I S I O N

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INTRODUCTION

1.  This is the Applicants’ application by summons filed on 13 March 2023 (the “Summons”) for extension of time to appeal the order of this Court dated 10 February 2023 (the “Order”) refusing their application for leave to apply for judicial review of the decision (the “Decision”) of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 28 August 2017 (the “leave application”).

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 the judge’s order to the Court of Appeal within 14 days after such order was made. By the time when the Summons was filed, the application is seventeen days out of time, which is substantial in the context of a fourteen-day appeal period.

3.  In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office[1] and Director of Immigration and William Lam[2], the Court of Appeal held that what may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance in determining whether to grant extension of time:

(1)  length of delay;

(2)  reasons for the delay;

(3)  prospect of success in the intended appeal; and

(4)  prejudice to the respondent if extension was granted.

Usually, prospect of success in the intended appeal is the determinant factor. If the delay is short and there are reasonable explanations for the delay, the Court would be more relaxed in respect of the other factors. If the delay is substantial and unexplained, usually extension of time will be refused because the statutory time limits are meant to be observed. In addition, an unexplained and substantial delay also reflects an absence of genuine intention to persecute the appeal.

LENGTH OF DELAY AND REASONS FOR THE DELAY

4.  The Court notes that the Applicants’ address as stated in their Summons is the same as the address to which the Order and Form CALL-1 were sent. The Applicants had obviously received the Order. But, they did not give any explanation for the delay. Directions had been given to them to file an affirmation or statement stating (i) the date when and the circumstances under which the Order was brought to their attention; and (ii) her grounds of the proposed appeal. In reply, the 1^st Applicant filed a statement stating as follows:

“I have got a letter for the Court about extension of my time to appeal. Actually I did not get the High Court Judgement on time. When I came to know my time to appeal already finished. As I changed my home. I did not provide my address because I always keep contract with my old address friend, they did not find any letter. Finally I am very sorry as I failed to appeal. Please extend time for me and my baby.

The 1^st Applicant’s explanation is that she had moved but had not updated the Court with her new address. She did not update the Court with her new address because she maintained contact with her old friends who were still residing in the old address. Furthermore, she claimed that her friends had told her that they had not receive the Order. It should be noted that even in this statement she did not give her new address. Her conduct casts doubt on the veracity of her explanation.

5.  The 1^st Applicant admitted receiving the Order, but alleged that she did not receive it in time to appeal. She did not comply with the Court’s instruction to state the date when and the circumstances under which she received the Order. The Court could have no means to assess the reasonableness of her explanation. In fact, their explanation is inherently inconsistent. In her first three sentences, the 1^st Applicant admitted that she received the Order but not within time to appeal; but in her fourth sentence, she said her friends who stayed in her old address did not receive the Order. Their explanation does not explain the delay.

6.  Furthermore, it is well established that an applicant is under a duty to maintain contact with the court and update the court with his change of address. If, for whatever reason, the Applicants had not received the Order because they had moved without updating the Court with their new address, they only had themselves to blame for the delay and bear the consequence: Karamjit Singh[3]. The Court can only come to the conclusion that they had given no reasonable explanation for the substantial delay.

GROUNDS OF APPEAL AND PROSPECT OF SUCCESS OF THE INTENDED APPEAL

7.  Despite the Court’s specific direction, the Applicants have not put forward any grounds of the proposed appeal. It is well settled law that the role of the courts in judicial review, including the Court of Appeal, 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. In a judicial review, the court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[4]. The Board’s Decision is basically a finding of fact which the Court in a judicial review will not interfere save for errors of law, procedural unfairness and irrationality in its Decision. For reasons as explained in Paragraphs 17 to 19 of the Form CALL-1, this Court could not find any such vitiating elements in the Board’s finding and Decision.

8.  The Applicants have not advanced any specific challenge of this Court’s Order or decision in the Form CALL-1. They have not identified the errors of this Court in refusing their leave application. Thus, by their intended appeal, they are seeking to challenge this Court’s finding that the Board’s Decision had not been tainted by any of the above vitiating elements, which is the sole ground for which the Court may review the Decision of the Board; but they have not provided any arguable basis for challenging this Court’s decision. They have not identified what was wrong with this Court’s finding that the Board’s decision had not been tainted by errors of law, procedural unfairness or irrationality. Having rigorously re-examined the Decision, the Form CALL-1 and all the papers with anxious scrutiny, this Court is unable to detect any such vitiating elements. The Applicants have advanced no valid grounds of appeal against this Court’s Order and decision. Their intended appeal has no prospect of success.

PREJUDICE TO THE RESPONDENT

9.  The prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed is obvious. The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement. To allow the challenge which has no prospect of success to proceed 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. Allowing the application to proceed may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

CONCLUSION

10.  The Applicants have no valid explanation for the substantial delay and have not advanced any grounds for appeal. Their intended appeal has no prospect of success. To allow such an un-meritorious challenge to proceed would be prejudicial to the intended respondent and the administration. Accordingly, their application for extension of time to appeal is refused.