DAVID HONEYLETH MANUEL AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 847/2017

[2020] HKCFI 2612

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 847 OF 2017

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D E C I S I O N

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Introduction

1.  This is an application dated 18 August 2020 to appeal my decision of 19 May 2020 refusing leave to apply for judicial review.  The applicants had 14 days in which to apply to appeal that decision.  They did not do so.  They now require leave to extend time to appeal against that order.  The applicants attended court and the judicial review procedure was explained to the first applicant.

Procedural Background

2.  The first applicant is a claimant under Article 3 of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment.  She entered Hong Kong legally as a Foreign Domestic Helper on 16 March 2013.  She was arrested on 30 May 2013 for soliciting and received a sentence of two months’ imprisonment.  She lost her job as a result.  The second applicant was born on 23 September 2014.  The first applicant submitted a non‑refoulement (“NRF”) claim on 4 December 2014 and a NRF for the second applicant was submitted on 30 December 2015. The first applicant was interviewed by the Director of Immigration (“the Director”) on 16 March 2016.  The Director dismissed their claims under all heads, by Notice of Decision on 26 April 2016 and by Notice of Further Decision on 10 July 2017.  They appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Ms Corrina Tai, heard the appeal on 11 September 2017.  The adjudicator refused their appeal on 27 October 2017.  

3.  The applicants filed a notice of application on a Form 86 seeking leave to apply for judicial review on 6 November 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.  Their application for leave to apply for judicial review was refused on 19 May 2020.  They had 14 days from that date to appeal that decision which would have expired on 2 June 2020.  By way of summons dated 18 August 2020, they seek leave to appeal out of time.

4.  An applicant does not require leave to appeal against a CFI judge’s refusal to grant leave to apply for judicial review (Order 59, rule 21(1)(g)).  The applicant may appeal as of right.  However, an applicant who wishes to appeal against a CFI judge’s refusal to grant leave to apply for judicial review, which is an interlocutory order has to observe the time limits for appeal under Order 53, rule 3(4) of the Rules of the High Court which allows 14 days.  Where the applicant is out of time to appeal against a judge’s refusal to grant leave to apply for judicial review, an extension of time may be granted by a judge of the Court of First Instance under Order 59, rule 2B(6).  The court is required to consider (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of success in the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted[1].

5.  In order to obtain that leave, an application must be made promptly and it must be supported by an affirmation or affidavit deposing to any facts relied upon by the applicant and giving a full account of and explanation for the whole of the delay since time expired.  

6.  Whilst the granting of an extension of time is entirely within the discretion of the court, the applicant is required to explain the reasons for his delay as this forms part of the consideration of whether there is good reason to allow an extension of time.  The first applicant, on behalf of them both, accepted this application was late and maintained that she had not received the Form CALL‑1 or Order from the High Court even though she received other mail.  Her address on the Form 86 was Room B, 3/F, 123‑125a Lockhart Road.  Correspondence on the Court file suggests that this address was being used by the Court and by the Legal Aid Department to correspond with them in 2018.  There is no notification of change of address and therefore the Form CALL‑1 and Order were posted to that address but then returned.  The address given in the current summons is almost identical in that it is Room B, 3/F, On On Building, 125A Lockhart Road and no explanation has been given as to why she should not have received the Form CALL‑1 and Order.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner[2].  The consequences of any delay arising from failing to do so will fall upon the litigant.[3]

7.  Even though the Court does accept that the explanation given for the delay is a reasonable one, the court is required to examine whether there is any merit in the applicant’s appeal[4].  Whether there is any such merit will depend upon well‑established legal principles[5] including the fact that the Court in judicial review is not to provide a further avenue of appeal on the merits of the underlying claim.  The applicants have no submissions in this regard.  There is therefore no question for the court as to whether these submissions truly seek to review the exercise of a judicial function and in so doing indicate a reasonable prospect of success in the intended appeal[6]. 

Conclusion

8.  The first applicant has now been in Hong Kong since 2013.  She has been interacting with various government agencies since that date.  The explanation she has offered to this Court, as to why she did not receive the order is not acceptable.

9.  In any event, I have considered the underlying application.  It has no merit as explained in the initial refusal of leave. There were no grounds of review and none could be ascertained from the papers. There was no complaint before the Court as to the decision to refuse leave. The applicants merely wish the Court of Appeal to consider their situation afresh.  Having considered the length of delay, reason for the delay and underlying merits of the application, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

10.  The applicants’ summons dated 18 August 2020 be dismissed.