TRAN THI LIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 534/2019

[2023] HKCFI 371

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 534 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 9 December 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 6 May 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 12 February 2019.

THE LAW

2.  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 of time was granted.

LENGTH OF DELAY AND REASONS FOR THE DELAY

3.  By 9 December 2022 when the Summons was filed, seven months and three days had lapsed since the date of the Order. The application is six months and nineteen days out of time, which is very substantial in the context of a fourteen-day appeal period.

4.  In her Summons and supporting affirmation, the Applicant alleged that when she received the Order, time to appeal had lapsed. In addition, as she could not speak English or Chinese, she had to wait for availability of her friend to help her to make the application. Her explanation for the delay is inadequate. The address she stated in her present application is different from that according to the Court’s record to which the Order was sent. It is most likely that she did not receive the Order 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.”

Thus, 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. Her language disability could not be a reasonable explanation for not updating the Court with her new address. She has no explanation for the very substantial delay.

5.  Out of abundance of caution and with a view to explore the existence of a possible explanation for this very long delay, this Court gave her specific directions to file a statement stating, inter alia, the date and circumstances when she was informed of the Order, all her correspondence addresses since 25 February 2019, the date of change of address thereafter, and the date of updating her new address with the Court.

6.  In her statement filed with the Court on 11 January 2023, the Applicant said she had changed her address but did not know how to update Court with the new address because she could not speak English or Chinese. It was only when she reported to the Immigration Department that she was reminded by the immigration officer that her application for leave to apply for judicial review had been refused and that she need to lodge a further appeal. Then she went back to her old address and found the Order. By then, the time to appeal had expired. In addition, she had to wait availability of her friend to help her in filing the appeal.

7.  Her explanation is woefully inadequate. Despite specific directions for providing particulars as to date and circumstances, she just repeated her vague allegation of being informed by an immigration officer that her application for leave to apply for judicial review was refused and late receipt of the Order. She did not provide particulars as to dates when she moved and when the above events occurred which are required for assessing the reasonableness of her explanation for the delay and which the directions were designed to obtain for the purpose of assisting her in making out a case. She evaded in giving those particulars. In the circumstances, the Court could only come to the conclusion that she has no reasonable explanation for the very substantial delay of more than six and half months.

PROSPECT OF SUCCESS OF THE INTENDED APPEAL

8.  In her statement filed with the Court, the Applicant advanced the following grounds of her intended appeal.

9.  First, she repeated her fear of harm from her husband’s moneylenders. This ground is in effect a challenge the Board’s finding of fact. Before the Board, she had made the same challenge against the decision of the Director of Immigration (the “Director”) in his Notice of Decision refusing her application for non-refoulement protection. For reasons as summarized in paragraphs 12 to 15 of the Form CALL-1, the Board rejected her evidence as inherently improbable. This finding is fatal to her claim as she bears the burden of proving her entitlement to protection. She has failed to discharge the burden of proving the factual basis of her claim. Further, on the basis of authoritative and credible Country of Origin Information, the Board found she could avoid or minimize the risk of harm by seeking state protection or internal relocation. For these reasons, the Board dismissed her appeal against the decision of the Director. For reasons as explained in paragraphs 16 to 19 of the Form CALL-1, after having rigorously examined the Decision with anxious scrutiny, this Court was satisfied that the Board’s Decision had not been tainted by errors of law, procedural unfairness or irrationality and hence refused her application for leave to apply for judicial review. Thus, by her intended appeal, the Applicant is in effect seeking to challenge this Court’s finding that the Board’s Decision has not been tainted by any of the above vitiating factor which are the sole grounds on which this Court may review the Decision of the Board; but she has not provided any basis for challenging this Court’s decision. Thus, her intended appeal on this ground has no prospect of success.

10.  Second, she disagreed with the Director’s assessment of viability of state protection and internal relocation as a means to avoid the harm. The Director’s decision was superseded by the Board’s Decision. The Court assumes in her favour that this ground is directed against the Board’s Decision. For the same reasons as explained in the preceding paragraph, there is no basis for challenging this Court’s decision. Her intended appeal on this ground has no prospect of success.

11.  Third, the Applicant argued that the Director did not consider her human rights under the Basic Law, Hong Kong Human Rights and Democracy Act, the International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights; and that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave to apply for judicial review. Again, the Court assumes in her favour that this ground is directed against the Board’s Decision. All these rights which an asylum seeker may rely on were incorporated into the four applicable grounds under the Unified Screening Mechanism (“USM”). The Applicant’s claims under these rights had been assessed by the Director under the USM and again by the Board. The Board’s assessment or Decision is a finding of fact which is not reviewable unless it is vitiated by error of law, procedural unfairness or irrationality in the Decision. For reasons as explained in paragraphs 16 to 19 of the Form CALL-1, after having rigorously examined the Decision with anxious scrutiny, this Court was satisfied that the Board’s Decision had not been tainted by errors of law, procedural unfairness or irrationality and hence refused the Applicant’s application for leave to apply for judicial review. Thus, by this ground, the Applicant is in effect seeking to challenge this Court’s finding that the Board’s Decision has not been tainted by any of the above vitiating factors which is the sole ground for which this Court may review the Decision of the Board; but she has not provided any basis for challenging this Court’s decision. Thus, her intended appeal on this ground also has no prospect of success.

PREJUDICE TO THE RESPONDENT

12.  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

13.  The Applicant has no valid explanation for the substantial delay. 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, the application for extension of time to appeal is refused.