RE RAI KALPANA

HCAL 81/2021

[2022] HKCFI 2059

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 81 OF 2021

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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 28 April 2022 (the “Summons”) for extension of time to appeal the order of Deputy High Court Judge Li (“DHCJ Li”) dated 23 February 2022 (the “Order”) refusing his application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 14 January 2021 (the “Leave Application”).

The Law

2.  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 success in the intended appeal;

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

Length of delay and reasons for the delay

3.  By 28 April 2022 when the Summons was filed, 64 days had lapsed since the date of the Order. The application is 50 days out of time, which is very substantial in the context of a fourteen-day appeal period.

4.  In his Summons and his supporting affirmation, the Applicant alleged that he did not receive the Order within 14 days. The explanation is just a bare assertion and is lacking in substance. To assist him in presenting a proper case, this Court gave him directions by letter dated 16 May 2022 (the “May directions”) to file a statement within 14 days of the letter stating the date and circumstances under which he first received the Court Order or information about the outcome of his Leave Application and the grounds of his intended appeal. The Court noted that his address as stated in the Summons and supporting affirmation, ie 204 Shanghai Street, is different from that to which the Order was sent, ie 207 Shanghai Street, but decided to let that be explained by the Applicant in his statement to be filed.

5.  In his statement filed on 30 May 2022 in compliance with the May directions, the explanation he gave for the late appeal is that he never received the letter and Order and he only learned about it from his immigration officer. On 2 June 2022, the Court gave him further specific directions dealing with his change of address. He was directed to file a statement about the changes of his address from 207 Shanghai Street since 10 December 2021 stating in respect of each change the particulars of his new address and date of change, date of reporting the change to the Immigration Department and to the Court and the date of his reporting to the Immigration Department (the “June Directions”).

6.  In purported compliance with the June Directions, he exhibited a tenancy agreement in respect of his address at 204 Shanghai Street commencing from 16 January 2022. The tenancy agreement evidenced that he had moved 38 days before the issue of the Order. That explains why he did not receive the Order. However, he did not answer the Court’s queries as to whether he had reported his new address to the Immigration Department or to the Court. According to the court file, he had not informed the Court of his change of address.

7.  In Karamjit Singh[2], the Court of Appeal said:

“As we have said before, it is common sense that if a litigant or a claimant does not notify the authority (be it the Immigration Department, the board, or the court) in his change of address, there would be delay in communication. If he does not do so, he should arrange for timely transmission of mail from his old address to his new address. It is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant, see: Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346. That said, however, we note that the delay in this case was very short, being only some 6 days. In such situations, the board should generally have regard to the merits of the case as disclosed by the available material, rather than simply dismissing the application for lateness.”

Thus, it is the Applicant’s duty to report his change of address to the Court. If he did not, he has to bear the consequence of his neglect. He does not have a reasonable explanation for not receiving the Order, though in fact he had not received it.

Prospect of the intended appeal

8.  The Applicant advanced two grounds of appeal. In his first ground, he quoted ST v Betty Kwan & Anor[3] and Secretary for Security v Sakthevel Prabakar[4] which are authorities for the high standard of fairness required to be observed in determining non-refoulement claims. He argued that the Decision has significant implications for the Applicant’s substantive right not to be subject to torture and his right to non-refoulement protection. This Court has no quarrel with the legal proposition that a high standard of fairness has to be observed in determining the Applicant’s claims. He relied on two breaches of that high standard.

9.  First, he argued that the Board erred in approaching the matter by simply trying to see whether it could “find fault with the decision of the immigration officer” and failed to “scrutinize the Director of Immigration and it is a general practice of the board to not question or find fault with the decision of the Director of Immigration”. There is no basis for this complaint. The Board knew that the appeal is a rehearing or trial de novo and that its duty is to come to its own conclusion on all issues of facts and credibility. It said at paragraph 7 of its Decision:

“The Board’s consideration of the appellant’s case covers all the applicable grounds referred to above. Although referred to as an “appeal”, the nature of the consideration of the Appellant’s case is a “rehearing” of the decision/determination of the Director: AM v The Director of Immigration, HCAL 102/2012, [2013] HKCFI 1924 para 28-30. Therefore, on an appeal to the Board, all questions of fact and law are at large. The Hearing before the Board is a hearing de novo. The Board must come to its own conclusion on all issues of credibility, facts and law and must come to its own conclusion on the relevant Country of Origin Information (“COI”).”

Having rigorously examined the Decision with anxious scrutiny, I am unable to find any suggestion that the Board had departed from the principles it quoted in the above passage.

10.  Second, the Applicant complained that the Board failed to consider matters such as the country conditions of the Applicant’s country of origin. There is ample reference to country of origin information in the Decision. It was mentioned in the above passage quoted. The Board had a comprehensive discussion of country of origin information in paragraphs 68 to 72 of its Decision.

11.  The Applicant’s second ground of appeal is that the Board was in breach of procedural fairness. But he has not identified any breach of that standard in the Decision or any failure by DHCJ Li in observing or applying that standard in his decision in the Form Call-1 when making the Order. Having rigorously examined the Decision and the Form Call-1 with anxious scrutiny, I am unable to find any breach of that standard.

12.  I am not satisfied that there is any prospect of success in the Applicant’s intended appeal.

Prejudice to the respondent

13.  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 which has no prospect of success 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 to proceed may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

14.  The Applicant has no valid explanation for the substantial delay. His 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.