SITI RIYANI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 519/2019

[2023] HKCFI 704

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 519 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 August 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 28 April 2022 (the “Order”) refusing her application for leave to apply for judicial review (the “Leave Application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 24 May 2018.

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 three months and fourteen days out of time, which is not insubstantial in the context of a fourteen-day appeal period.

THE LAW

3.  In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office[1] and AW v 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.

LENGTH OF DELAY AND EXPLANATION FOR THE DELAY AND PROSPECT OF SUCCESS

4.  The Applicant’s explanation for the delay in appealing as set out in her supporting affirmation is that she had never received any letter from the court informing her that her Leave Application had been refused. She said she was only informed of the result by an immigration officer, presumably after the time to appeal had expired. She did not state the grounds of her intended appeal.

5.  The Court noted that the Order and Form CALL-1 were sent to the Applicant’s last known address in Yee Wo Street, whereas her address as stated in her Summons and supporting affirmation is at Chun Yeung Street. The Court has never been informed of her change of address. If in fact she had not received the Order, it was most likely because she had not informed the Court of her change of address. In Karamjit Singh[3], the Court of Appeal said:

“As we have said before, it is common sense that if a litigant or a claimant does not notify the authority (be it the Immigration Department, the board, or the court) in his change of address, there would be delay in communication. If he does not do so, he should arrange for timely transmission of mail from his old address to his new address. It is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant, see: Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346. That said, however, we note that the delay in this case was very short, being only some 6 days. In such situations, the board should generally have regard to the merits of the case as disclosed by the available material, rather than simply dismissing the application for lateness.”

It is the Applicant’s duty to report her change of address to the Court. If she did not, she has to bear the consequence of her neglect.

6.  Instead of rejecting her explanation forthwith, to assist her to make a proper application for extension of time, this Court gave her specific directions by letter dated 4 January 2023 to file a statement by 10 January 2023 stating, inter alia, the date and circumstances when the Order was received by her or brought to her attention, her correspondence addresses since 22 February 2019 when she last used her Yee Wo Street address, the dates of her subsequent changes of address, the dates of her informing the Court of the change and the grounds of her intended appeal. As at the date of this decision, sixty-one days have lapsed since the date of the directions, this Court has not received any response from her. She has been given enough indulgence from this Court. In the circumstances, this Court could only come to the conclusion that she did not receive the Order and Form CALL-1 because she neglected to update the Court of her change of address and she has failed to demonstrate there is good prospect of success in her intended appeal.

PREJUDICE TO THE RESPONDENT

7.  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 her 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

8.  The Applicant has no valid explanation for the delay. Despite directions having been given to her to file proper explanation for the delay and the grounds of her intended appeal, she did not respond. Her 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, her application for extension of time to appeal is refused.