RE SOFIATUN

HCAL 446/2019

[2022] HKCFI 1845

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 446 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 dated 26 April 2022 for extension of time to appeal the order of this Court dated 16 March 2022 (the “Order”) refusing to grant her leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Summons”).

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 against the judge’s order to the Court of Appeal within 14 days after such order was made.

3.  In Jagg Singh 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 delay and explanations for the delay

4.  By 26 April 2022, the time to appeal has expired. The application for leave to appeal is 27 days out of time. In the context of a 14-day period of appeal, the breach is substantial.

5.  The Applicant explained in her Summons and supporting affirmation that the reason for the delay was that she could not attend court to file the application as she had contracted Covid-19 and had to isolate herself at home. As her explanation is in very general terms and lacking in particulars, this Court gave her directions by letter requiring her to file an affirmation or statement within 14 days of the directions stating:

(a)  the date when she contracted Covid-19, exhibiting supporting evidence including evidence of reporting the same to the authority; and

(b)  the grounds of her intended appeal.

She was also informed that her application for extension of time will be determined on paper without a hearing 7 days thereafter regardless of whether she has complied with the directions in paragraph (1).

6.  On 24 May 2022, the Applicant lodged a letter in purported compliance with the directions. She wrote:

“I am an Indonesian woman. I apply for leave to appeal for judicial review. The High Court dismissed my leave. I wanted to appeal but I was sick. I requested to the High Court to extend time for me. The High Court gave chance to me but unfortunately I did not get the letter. My time is already finished.

So I have no way. And I request to the Honourable Court to extend time again.”

7.  This letter added nothing to her Summons or supporting affirmation. It only repeated her wish to appeal and she could not appeal within time because she was sick. Not only did she fail to give any particulars as to when she contracted Covid-19 and supporting evidence, she did not state the grounds of her intended appeal. The date when she contracted Covid-19 is important for the purpose of assessing the effective length of the delay. Her grounds of intended appeal are required to assess the prospect of her intended appeal. The information is necessary for determining her application.

8.  The directions were given in simple English. The standard of the English used in her letter suggests that she understood the directions. The impression conveyed by her letter is that she was trying to avoid providing the information. This cast serious doubts on the veracity of her explanation. The irresistible inference is that her allegation of having contracted Covid-19 is false and she had no valid explanation for the delay.

Prospect of success of the intended appeal

9.  The Applicant did not state the grounds of her intended appeal. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[2]. In the absence of any specific grounds challenging the Court’s decision in refusing leave to apply for judicial review, the court can only re-focus on these vitiating elements in the decision when considering the prospect of success of the intended appeal against its decision.

10.  I have rigorously re-examined the Form Call-1, the Decision, the papers and the evidence with anxious scrutiny. I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the issues; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Applicant advanced no ground of appeal. Presumably, she intends to challenge the Board’s finding of fact. Her intended appeal is wholly unarguable. It has no prospect of success at all.

Prejudice to the respondent

11.  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. Her application 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

12.  The delay is substantial. There is no valid explanation for the delay and no arguable ground of appeal. It is a clear abuse of legal process to challenge a decision without proper and good grounds of appeal and which is bound to fail. Despite having been given a last opportunity to explain the delay in lodging the appeal and to furnish her grounds of appeal, the Applicant has failed to do so. The only reasonable inference is that she has no explanation for the delay and no arguable ground of appeal. Her application is an abuse of legal process. 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.