RE BAHI AN ANNIE ROSE CELESTIAL

HCAL 2301/2018

[2021] HKCFI 1746

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2301 OF 2018

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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 dated 7 May 2021 for extension of time to appeal the order of Deputy High Court Judge C P Pang dated 19 January 2021, refusing her application for leave to apply for judicial review (the “Order”).  She is more than three months late.

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.  By 2 February 2021, the time to appeal has expired.  The application for leave to appeal is more than 3 months out of time.  The breach is very serious, being more than seven times the time limit for appeal.

3.  In Jagg Sing 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.

Length of the delay and reasons for delay

4.  The Order was issued on 19 January 2021.  In her summons and supporting affirmation filed on 7 May 2021, the Applicant alleged that she only received the Order on 7 May 2021, almost four months after the date of issue.  She mentioned nothing about the circumstances she came to receive the Order or gave any plausible explanation why the Order would have taken almost four months to reach her.

5.  On 1 June 2021, I gave directions for the Applicant to furnish, inter alia, information as to the date of receipt of the Order with supporting evidence such as envelope with post mark; reason for the late receipt with supporting evidence; if the reason is related to a change of address, the date of change with supporting evidence, such as tenancy agreement, rental receipt and government letters; and grounds of appeal within 14 days.  

6.  On 15 June 2021, the Applicant replied that she “did not receive any notice for [the Order] on [her] old address”; and that she had moved to her new address on 15 January 2021, four days before the Order was issued.  She said that the rent will be paid by the Government (ie International Settlement Service) directly to her sponsor, ie the landlady.  She exhibited an undated tenancy agreement for a term of two years starting from 15 January 2021 and a rental receipt in respect of the premises at the new address for the month of January 2021. 

7.  The tenancy agreement is not satisfactory. Apart from the fact that it was not stamped and not dated, the Applicant is not a tenant party to the agreement and there is no evidence of any sub-tenancy between that tenant and the Applicant and evidence of the arrangement among International Settlement Service, the landlady and the Applicant.  Similarly, there is no evidence who were the landlord and tenant in respect of the premises mentioned in the rental receipt.  There is no need to take issue about the tenancy agreement and rental receipt.  Even accepting the Applicant has proved to a very low standard that she had moved four days before the Order was posted, it then becomes inexplicable how and why she would have received the Order three months later.  That casts serious doubts on her story as to when she had actually moved.

8.  There is also no need to take issue about when she actually moved.  There is no evidence that the Applicant had notified the High Court of her change of address.  As was held by the Court of Appeal in Re Karamjit Singh[2], 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 a timely manner.  The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant.  Even if I am to accept that the Applicant had moved before the Order was issued and has an explanation for not receiving the Order in time, it is not a valid explanation.  She only has herself to blame and to bear the consequence for the delay.

9.  The delay of more than three months is substantial.  There is no valid explanation.  By themselves, these are not fatal.

The Applicant’s case and the finding of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”)

10.  The Applicant is a Philippine national.  She entered Hong Kong as a visitor on 6 April 2016 and overstayed since 21 April 2016.  She applied for non-refoulement protection on 6 May 2016, claiming by her statement dated 11 July 2016 she would be killed by Bashit Abdul with whom she had a land dispute.

11.  However, the case she presented to the Board in her non-refoulement claim form which was prepared with the assistance of the Duty Lawyer Service in May 2017 is that she will be harmed or killed by six unknown men if she refused to settle her deceased husband’s debt.  She did not appear at the appeal hearing scheduled on 15 June 2018 without any explanation.  She did not respond to the Board’s request for explanation. Then, the Board proceeded to determine her appeal on paper.  Essentially because of the inconsistency between her statement dated 11 July 2016 and her non-refoulement claim form dated 25 May 2017, the Board found her not a credible witness.  The Board gave detailed reasons for rejecting her evidence and why it was not satisfied that the Applicant had discharged the burden of proving her entitlement to protection on all the four applicable grounds under Unified Screening Mechanism.

The grounds for judicial review and decision of the Court now sought to appeal against

12.  The Applicant’s grounds for leave to apply for judicial review as set out in her supporting affidavit is:

“Par. 26 You said I was inconsistent because I said I applied for non-refoulement because of a land dispute but I never said that.

Par. 24 (the Hearing)  On the 15th of June 2018 I was not present at the hearing because I never received the letter.”

She also alleged that the Board was bias and unreasonable, but gave no particulars.

13.  The proposed judicial review revolved within a very narrow compass, ie whether the Applicant had said in her statement to the Immigration Department dated 11 July 2016 that she was threatened with death by Bashit Abdul with whom she had a land dispute.  She gave no particulars about bias and unreasonableness.  These two complaints must necessarily flow from whether the Board was entitled to rely on her statement dated 11 July 2016 in coming to its finding of fact and the Applicant’s credibility.

14.  It is true that the Applicant did not attend the appeal hearing on 15 June 2018.  But it is not the Board’s finding that she did and said during that hearing that she applied for non-refoulement protection because of a land dispute.   The Board said that she did not attend the hearing and gave no explanation.  The Board made it absolutely clear that she gave an inconsistent reason for her application for protection in her statement dated 11 July 2016. DHCJ Pang took the extra care of calling for the statement from the Board and satisfied himself that the Applicant did say so in her statement dated 11 July 2016.  Principally, for that reason, DHCJ Pang found that the ground she relied on was a challenge of the Board’s finding of fact and that finding could not be criticized as being erroneous in law, unsupported by evidence, unreasonable or irrational or procedurally unfair and the Board was not in breach of the high standard of fairness.

Prospect of success of the intended appeal

15.  Despite being specifically invited to state her grounds for judicial review, the Applicant only put forward the following as her ground of appeal:

“And Further take notice that the grounds of this appeal are that they Review And Re-Hearing my case.”

That is just a prayer for the relief sought.  It disclosed no reasonable grounds of appeal. 

16.  As was held by the Court of Appeal in Nupur Mst v Director of Immigration[3], the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director of Immigration (the “Director”) and the Board.  Assessment of evidence and Country of Origin Information materials and risk of harm, state protection and viability of internal relocation is primarily within the province of the Board and the Director.  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  Having regard to the very limited ground for judicial review advanced in the application for leave and DHCJ Pang’s reasons for refusing her application, one can hardly find any arguable grounds of appeal.  This proposed appeal has no prospect of success.

Prejudice to the respondent

17.  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. It 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.  It may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

18.  In summary, there is no valid explanation for the delay of a substantial length of time of more than three months.  That is not necessarily fatal to the application for extension of time.  But the absence of a good ground of appeal is.  It is an abuse of process to challenge a decision without proper and good ground of appeal and which is bound to fail.  To allow such a challenge to proceed when it is already out of time would encourage other claimants to indulge in such abuse and create prejudice to the intended respondent and to the administration.  For all these reasons, the application for extension of time to appeal is refused.