NALUBEGA SARAH AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1631/2019

[2023] HKCFI 833

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1631 OF 2019

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D E C I S I O N

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INTRODUCTION

1.  This is the Applicants’ application by summons filed on 24 February 2023 (the “Summons”) for extension of time to appeal the order of this Court dated 11 October 2022 (the “Order”) refusing their 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 18 March 2019 (the “Decision”).

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 the judge’s order to the Court of Appeal within 14 days after such order was made. In Jagg Singh v Torture Claims Appeal Board / Non-refoulement Claims Petition Office[1] and AW v 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 was granted.

Usually, prospect of success in the intended appeal is the determinant factor. If the delay is short and there are reasonable explanations for the delay, the Court would be more relaxed in respect of the other factors.

LENGTH OF DELAY AND REASONS FOR THE DELAY

3.  By the time when the Summons was filed, the application was four months out of time. The Applicants’ explanation for the delay is that they had never received the Order and Form CALL-1; and they were only alerted by a magistrate when the 1^st Applicant appeared in Shatin Magistrates’ Court on 31 January 2023 in relation to a charge of overstaying that the Order might have been handed down. Then through a non-governmental organization called RUN HK the 1^st Applicant found out that the Order and Form CALL-1 had been issued on 11 October 2022. It was only with the help of another non-governmental organization called Justice Centre HK, that they were able to complete the documents and file this Summons on 24 February 2023. The 1^st Applicant further alleged that in recent months the lock of her mailbox had been broken and the mailbox was always left open. She had regularly checked the mailbox but never found the mail enclosing the Order and Form CALL-1, though she found other people’s mails in her mailbox. She said because the mailbox is small, mails contained in large envelopes were just left on the floor.

4.  In essence, the Applicants are suggesting that the Order and Form CALL-1 were lost in the mail and they were unaware of the Order having been made until 1 February 2023. That explains the delay from for the first period from 11 October 2022 to 31 January 2023. As for the delay in the second period from 1 February to 24 February 2023, their explanation is that they needed time to seek assistance from non-governmental organizations in preparing the documentations.

5.  The Applicants’ suggestion that the Order had been lost through the mail is not credible. The delivery service of Hong Kong Post is usually very reliable. The court staff are under strict instructions to post court orders on the date of the order and to the correct last known address of the recipient. The Applicants’ suggestion that the Order contained in a large envelope might have been left on the floor does not accord with the fact as the Order and Form CALL-1 were sent in the usual 24 cm envelope. While I would not rule out for the benefit of the Applicants the possibility of theft and meddling of mails in the mailbox, such possibility is very slim. Given the fact that the 1^st Applicant is a single mother, this Court is prepared to accept the explanation for the delay in the second period of 23 days. In overall terms, I am prepared to give the Applicants the benefit of doubt and accept their explanation for the overall delay of four months.

PROSPECT OF SUCCESS OF THE INTENDED APPEAL

6.  In their Summons and the 1^st Applicant’s affirmation, the Applicants asserted that there are substantive merits in the intended appeal, but no particulars have been given. To obtain extension of time to appeal, it is incumbent on the applicant to put forward his or her grounds of the intended appeal and to convince the court that the intended appeal has good prospect of success on those grounds. A bare assertion of substantive merits is not enough.

7.  The Applicants’ claim for non-refoulement protection is founded on the 1^st Applicant’s fear of being harmed or killed by her uncles because of a land dispute. The Board found her evidence incredible and came to the conclusion that she would not be at real risk of the proscribed harm should she be returned to Uganda. These are finding of facts exclusively within the province of the Board which the court in a judicial review may not interfere save for errors of law, procedural unfairness or irrationality in the Decision: see Nupur Mst v Director of Immigration[3]. Part of the 2^nd Applicant’s claim is also hinged on the 1^st Applicant’s. In addition, she has a child specific claim founded on her alleged statelessness and discrimination. These claims were also rejected by the Board. These are finding of mixed fact and law. Insofar as that part of the Decision based on the Board’s finding of fact is concerned, this Court may not interfere for the same reason as given above. Insofar as that part of the Decision based on the Board’s finding and application of the law is concerned, this Court was unable to identify any errors in the law. This Court had rigorously examined the Board’s Decision, the papers and the evidence with anxious scrutiny but was unable to identify any errors of law, procedural unfairness or irrationality in the Decision. Hence, it refused the Applicants’ application for leave to apply for judicial review.

8.  The Applicants now seek extension of time to appeal this Court’s decision refusing their Leave Application. They asserted there are substantive merits but did not put forward any grounds of the intended appeal or identify where their merits lie. As explained above, the scope within which an applicant may apply for judicial review is very narrow. Even less is the scope within which he may appeal the court’s decision refusing him leave to apply for judicial review. The applicant has to show the court erred in its finding that the Board’s decision was free from errors of law, procedural unfairness or irrationality in the Decision. The Applicants have not identified any arguable grounds that this Court has so erred. There is no prospect of success in the intended appeal.

PREJUDICE TO THE RESPONDENT

9.  The Applicants argued that there is no prejudice to the administration of justice if extension of time is allowed because no hearing date has been fixed for determination of the “intended proceedings”. There are no other known proceedings relating to their non-refoulement claim. If the “intended proceedings” means the substantive hearing of the intended appeal, the prejudice to the proposed respondent and to public administration is obvious. The delay in appealing 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 further 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

10.  Even giving no adverse weight to the four months’ delay in appealing, the Applicants’ 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, their application for extension of time to appeal is refused.