RE REPONOYA ARLYN ESPINOSA

HCAL 2802/2018

[2022] HKCFI 538

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2802 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 filed on 15 October 2021 seeking extension of time to appeal my order dated 28 May 2021 (the “Order”) refusing her leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 26 October 2018 (the “Decision”).

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 15 October 2021, the time to appeal has expired. The application for leave to appeal is four months out of time.

3.  In AW v Director of Immigration and William Lam[1], 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) explanation for the delay;

(3) merits of the substantive application;

(4) prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time; and

(5) whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

Length of delay and explanation for the delay

4.  The length of delay was four months. That was very substantial by any standard in the context of a limitation period of 14 days.

5.  The Applicant did not state the facts and reasons in support of her application nor did she file any supporting affirmation giving her grounds of application. On 24 December 2021, this Court gave directions to the Applicant to file an affirmation setting out the following:

(a) if the delay is related to late receipt of the decision/order in respect of which leave to appeal is sought, the date when the decision/order was received or brought to her notice, and exhibit supporting evidence, such as the envelope containing the decision/order showing the date of posting;

(b) if the Applicant has changed her residential address since the date of application for leave to apply for judicial review,

(i) the date of change and new address, with supporting documentary evidence, such as tenancy agreement, rental receipts, letters from government department or other bodies, if any;

(ii) the date of reporting the change to Immigration Department; and

(iii) the date of informing the change to the High Court;

(c) the circumstances the Applicant came to know about the decision/order and exhibit supporting documentary evidence, if any;

(d) explanation for the late application and exhibit supporting documentary evidence, if any;

(e) the grounds of the intended appeal; and

(f) if the above directions are not complied within the time specified, the application may be dismissed for want of merits.

6.  The Applicant replied by her letter dated 5 January 2022 as follows:

“Please be informed that I have received your letter dated December 24, 2021 in which the contents were duly noted.

In this connection, the delay of filing was because I made a wrong application. The case mentioned was different that was submitted before. This is the reason I have to submit the right case number.

In addition, I am applying for re-appeal because I was not satisfied of the decision and I have new proofs to submit in supporting this application.

Thank you very much for your kind attention on this regard,”

By this reply, the Applicant suggested that she had made an application within time, but she quoted the wrong case number which caused the delay. The Applicant was not alleging non-delivery or late delivery of the Order. The grounds of appeal are that she was not satisfied with the decision and she has new evidence to submit.

7.  That explanation is somewhat ambiguous and in any event incredible. On 11 January 2022, further directions were given to her as follows:

“Applicant to provide particulars of the “wrong application”, including case number, names of the parties and date of filing within 7 days, failing which her application will be refused.”

8.  On 18 January 2022, the Applicant wrote back as follows:

“Please be informed that I have received your letter dated 11/01/2022 on January 15, 2022 in which the contents were duly noted.

In this connection, I have attached the needed proofs as per your request of why there was a delay of the submission of my re-appeal of my case.

Thank you very much for your kind attention on this regard.”

However, there is no attachment enclosed in the letter.

9.  The directions are very simple. The Applicant was asked to provide some particulars. The least she could have done to comply with the directions was to provide particulars of the “wrong application” she alleged, such as the case number. The Court could have verified her reasons for the late filing. Instead of quoting the case number, she allegedly enclosed some proofs which she did not in fact enclose in her letter. It is unlikely that she would have by accident neglected to enclose the “proofs” because she was never asked to exhibit anything or proofs and it was so simple to just quote the case number, names of the parties and date of filing. Yet, she did not do so and chose to allegedly enclose the “proofs” in her letter. The only reasonable inference is that she had no “proofs” to produce and all that she did was to delay the process. The Applicant could offer no explanation for the very substantial delay of four months.

Merits of the appeal

10.  The Applicant did not state the grounds of appeal in her summons. Despite my directions given on 5 January 2022 requesting her to state her grounds of appeal, all that she could say was that she was not satisfied with the decision. This is at best a statement of her disappointment with the outcome of her application for leave to apply for judicial review. It lacks particulars of her grounds of appeal, let alone arguable grounds of appeal. The Applicant has failed to show she has any arguable or valid ground of appeal.

Prejudice to the Applicant and proposed respondent

11.  As the Applicant has no arguable or valid ground of appeal, she would suffer no prejudice if her application is refused.

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

No questions of general public importance

13.  The application does not raise any questions which are likely to have to be resolved by the courts in any event.

Conclusion

14.  The Applicant was four months late. The delay was unexplained and deemed self-created for dubious motive. She had no arguable or valid grounds of appeal. Even if these grounds were allowed to be raised on appeal, the intended judicial review had no prospect of success. It would be a futile exercise of its discretion to grant extension of time to enable the Applicant to apply for a judicial review which is bound to fail. To allow such an un-meritorious challenge to proceed would be prejudicial to the proposed respondent and the administration. The application does not raise any questions of general public importance. Accordingly, the application for extension of time to appeal my Order dated 28 May 2021 is refused.