RE IRMAWATI B T ZAKARIA HATTA AND ANOTHER

HCAL 1662/2018

[2021] HKCFI 1241

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1662 OF 2018

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D E C I S I O N

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Introduction

1.  This is an application dated 17 September 2020 to appeal my decision of 26 June 2020 refusing leave to apply for judicial review. The applicants had 14 days in which to apply to appeal that decision.  They did not do so.  They now require leave to extend time to appeal against that order.  The applicants attended court with the benefit of an interpreter.

Procedural Background

2.  The applicants are claimants under Article 3 of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment.  The 1^st applicant entered Hong Kong lawfully as a foreign domestic helper on 27 October 2014 but her employment contract was terminated prematurely.  She surrendered to the Immigration Department on 13 January 2015.  She met and married her husband, who is a Nigerien national and gave birth to the 2^nd applicant on 22 September 2016.  They submitted non-refoulement (“NRF”) claims on 19 December 2016.  The 1^st applicant was interviewed by the Director of Immigration (“the Director”) on 3 January 2017.  The Director dismissed his claim under all heads, by Notice of Decision on 5 January 2018.  She appealed that Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Evan Ruth, heard the 1^st applicant on 26 April 2018.  The adjudicator refused their appeal on 12 July 2018.

3.  The applicants filed a notice of application on a Form 86 seeking leave to apply for judicial review on 17 August 2018 and did not request an oral hearing.  The matter was therefore considered on the papers.  Their application for leave to apply for judicial review was refused on 26 June 2020.  They had 14 days from that date to appeal that decision which would have expired on 10 July 2020.  By way of summons dated 11 September 2020, the 1^st applicant sough judicial review of the same decision which was refused.  On 17 September 2020, they sought leave to appeal out of time from the original refusal.

4.  An applicant does not require leave to appeal against a CFI judge’s refusal to grant leave to apply for judicial review (Order 59, rule 21(1)(g)).  The applicant may appeal as of right.  However, an applicant who wishes to appeal against a CFI judge’s refusal to grant leave to apply for judicial review, which is an interlocutory order, has to observe the time limits for appeal under Order 53, rule 3(4) of the Rules of the High Court which allows 14 days.  Where the applicant is out of time to appeal against a judge’s refusal to grant leave to apply for judicial review, an extension of time may be granted by a judge of the Court of First Instance under Order 59, rule 2B(6).  The court is required to consider (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of success in the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted[1].

5.  In order to obtain that leave, an application must be made promptly and it must be supported by an affirmation or affidavit deposing to any facts relied upon by the applicant and giving a full account of and explanation for the whole of the delay since time expired.  Whilst the granting of an extension of time is entirely within the discretion of the court, the applicant is required to explain the reasons for his delay as this forms part of the consideration of whether there is good reason to allow an extension of time.  The 1^st applicant accepted they were late and gave no reason within her Affirmation as to why that was the case other than she did not receive the letter from the Court.  The Court file suggests that it was properly served upon the address given at that time, which is not the same address the applicant uses today.  She later changed her address and correspondence was sent to that address.  The correspondence was not returned. She still says she did not receive it.  The applicant maintains that she only learnt of the refusal of leave when an officer from the Immigration Department contacted her on 7 September 2020 to deal with her return to her home country. She then took a further 10 days to take out her summons as the court staff were unhelpful.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner[2].  The consequences of any delay arising from failing to do so will fall upon the litigant[3].  

6.  Even if the Court does accept that the explanation given for the delay is a reasonable one, which it does not, the Court is required to examine whether there is any merit in the applicant’s appeal[4].  Whether there is any such merit will depend upon well‑established legal principles[5] including the fact that the Court in judicial review is not to provide a further avenue of appeal on the merits of the underlying claim.  The applicant is married to a Form 8 holder who is also undergoing judicial review and yet she maintains they never discussed the procedure and therefore had no idea what to do.    The applicant submits on behalf of her child that he will be discriminated against if she has to return to Indonesia.  The question for the court is whether these submissions truly seek to review the exercise of a judicial function and in so doing indicate a reasonable prospect of success in the intended appeal[6].

Conclusion

7.  The applicant has now been in Hong Kong since 2014.  She has been interacting with various government agencies since that date.  The explanation she has offered to this court, as to why she did not receive the order is not acceptable nor is the suggestion that she had no help from court staff when she came to the court on several occasions.

8.  In any event, I have considered their underlying application.  It has no merit as explained in the initial refusal of leave.  There were no grounds of review and none could be ascertained from the papers.  There was no complaint before the Court as to its decision to refuse leave.  The applicant merely wishes the Court of Appeal to consider her situation afresh because of her child.  Having considered the length of delay, reason for the delay and underlying merits of their application, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

9.  The applicants’ summons dated 17 September 2020 be dismissed.