RE LUTFIANA

HCAL 2314/2018

[2022] HKCFI 1967

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2314 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 25 April 2022 (the “Summons”) for extension of time to appeal my order dated 16 July 2021 (the “Order”) refusing her application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 19 January 2018.

2.  In her supporting affirmation, the Applicant alleged that she did not receive the Order within 14 days and should be given a reasonable opportunity to present her case. Impliedly, she had received the Order, but not within 14 days. About nine and half months had lapsed since the date of the Order. A good explanation is required. To assist her in presenting a proper case, this Court gave her directions by letter dated 10 May 2022 to file a statement within 14 days of the letter stating:

(a)  the date and circumstances under which she first received the Court Order or information about the outcome of her application for leave to apply for judicial review of the Decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (exhibiting documentary evidence, such as the envelope containing the Court Order, if available); and

(b)  the grounds of her intended appeal.

She was also informed that her application will be determined on paper 7 days thereafter without a hearing whether she has complied with the above directions or not. She did not respond. The letter was posted to her at the address given by her less than a month ago in her Summons. It has not been returned through the post. There was nothing to suggest the Applicant had moved or had not received the letter. She is deemed to have declined providing her reasons for the delay in appealing and her grounds of the intended appeal.

The Law

3.  In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office[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)  reasons for the delay;

(3)  prospect of the intended appeal;

(4)  prejudice to the respondent if extension of time was granted.

Length of delay and reasons for the delay

4.  By 25 April 2022 when the Summons was filed, 283 days had lapsed since the date of the Order. The application is almost nine months out of time, which is very substantial in the context of a fourteen-day appeal period. Despite specific directions were given requiring her to give explanation for the delay, the Applicant declined to do so. The delay was very substantial. The only reasonable inference is that she has no reason or explanation for the nine months’ delay.

Prospect of the intended appeal

5.  The Applicant declined providing her grounds of intended appeal. The ultimate subject matter which the Applicant seeks to challenge in the intended judicial review is the finding of the Board in its Decision. The only way the Court could assess the prospect of success of her intended appeal is to re-examine the Decision afresh. In an application for leave to apply for judicial review, an applicant may only challenge the Board’s finding on the grounds that it was made as result of errors of law, procedural unfairness and that the Decision was irrational. All these considerations have been set out in the Form Call-1. The decision to refuse her application for leave to apply for judicial review was made after rigorous examination of the Decision and all the papers with anxious scrutiny. Given the limited scope in which an applicant may challenge the finding of the Board in a judicial review and having rigorously re-examined the Form Call-1 with anxious scrutiny, I am not satisfied that there is any prospect of success in the Applicant’s intended appeal.

Prejudice to the respondent

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

Conclusion

7.  The Applicant has no arguable grounds of appeal and has no valid explanation for the very substantial delay. Her 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, the application for extension of time to appeal is refused.