MOHAMMAD FALEEL ASADHORE alias MOHAMED FALEEL ASADHORE alias ARCHCHEGE THEWANKAC CHANDRASOMA MAPETEGMA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2061/2018

[2024] HKCFI 734

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2061 OF 2018

BETWEEN

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DECISION

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Introduction

1.  This is the Applicant’s application by summons filed on 11 January 2024 (the “Summons”) seeking extension of time to appeal the order of Deputy High Court Judge Patrick Li dated 5 January 2022 (the “Order”) refusing his 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 20 August 2018.

Legal principles applicable to application for extension of time to appeal

2.  Under Order 53, Rule 3(4) of the Rules of the High Court, an appeal against any decision of the court refusing an application for leave to apply for judicial review shall be made within fourteen days after the date of the decision. Thus, by 11 January 2024 when the summons was filed, more than two years and one week had lapsed since the date of the Order. The application is one year eleven months and twenty-three days out of time, which is very substantial in the context of a fourteen-day appeal period.

3.  In Jagg Singh and Torture Claims Appeal Board / Non-refoulement Claims Petition Office^[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if extension of time was granted. Usually, prospect of success of the intended appeal is the single factor which carries most weight in deciding whether to grant extension of time. The fourth factor only needs to be considered only if the sum total of the first three are in favour of granting extension of time.

Length of delay and reasons for the delay

4.  The application is almost two years’ late. The delay is very substantial in the context of a fourteen day’s period of appeal. In response to the Court’s directions requiring him to explain the reason for the delay, the Applicant filed a statement alleging: (1) he had moved out of his address in Woosung Street to Jordan Road in December 2021; (2) around the same time the building in which he lived was locked down and placed under guarantine because of COVID-19; (3) in March 2022, he was arrested and sentenced to five months’ imprisonment for theft; (4) after serving his sentence he was transferred to Castle Peak Bay Immigration Centre (“CIC”) and detained therein until now; and (5) he did not know his leave application had been determined and the Order made.

5.  He did not provide all the information required in the directions. He did not state whether he had informed the Court or the Immigration Department about his change of address. He did not state when the Order was first received or brought to his notice and the circumstances. As the Court has no record of his change of address, the inevitable inference is that he had moved without informing the Court of his new address. It remains unexplained how and when he first came to know about the Order having been made. Usually, such information is necessary to enable the Court to assess the reasonableness of his explanation for the delay.

6.  What transpired from the above facts is that the Applicant changed his address in December 2021 without informing the Court. The Form CALL-1 and Order were sent to his previous address in Woosung Street on 5 January 2022 after he had moved. Under those circumstances, it is credible that the Applicant did not know about the Order having been made against him. All the other events, such as the lock down of his building, his five months’ imprisonment and subsequent detention in CIC have little significance in assessing the reasonableness of his explanation.

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.”

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 which such failure brings.

8.  The Applicant had been given clear directions to explain the delay of almost two years before filing his application for extension of time to appeal. He attempted to deceive the Court by saying that he knew nothing about the Order and did not appeal because he was in prison and then in immigration detention. His lie is betrayed by the court file showing that he had written to the court on 29 September 2022 asking for a copy of the decision as he wanted to “proceed [his] case further”, which in the context could only mean to appeal against an adverse decision made against him. On his request, a copy of the Order and Form CALL-1 were sent to him on 11 October 2022. Then, he sat on them until he filed his Summons on 11 January 2024. He simply disregarded the Court’s direction and swept everything under the carpet of his prison sentence and then his immigration detention. He has no explanation for his inaction from 5 January 2022 when the Order was issued up to 29 September 2022 when he knew about the Order having been made and requested for a copy of the decision. That was a lapse of eight months and twenty-five days. Though he received a copy of the Order on 11 October 2022, it was not until 11 January 2024 that he filed his Summons seeking extension of time to appeal, another fifteen months’ inaction. He has no reasonable explanation for the almost two years’ delay.

Prospect of success of the intended appeal

9.  The Applicant’s ground of the intended appeal as put forward in his Summons is that the Board made the decision without considering his grounds of application. That assertion lacks particular and could not be a valid ground of appeal. He had also been given directions to set out his grounds of appeal. He did not give any specific grounds of appeal in his statement. Among his explanation for the delay is an assertion in the first page of his statement that [he] was not able to have a fair chance to assess [his] application for judicial review, because the Court of First Instance dismissed [his] application without [him] attending the court hearing. The Court will treat this complaint and his assertion in the Summons as his grounds of appeal.

10.  The Applicant’s complaint under the first ground is that the Order was made without considering his grounds of application. The ground of application as stated in his Form 86 is that he was not satisfied with the decision of the Board, he did not want to return to his home country and he reiterated that his life will be at risk there. In his supporting statement, he repeated he was not satisfied with the decision of the Board.

11.  In paragraph 29 of the Form CALL-1, Deputy High Court Judge Patrick Li noted the Applicant’s ground of application. In paragraph 30, the Deputy Judge explained what a court in an application for judicial review could do is to look for errors of law, procedural unfairness and irrationality in the decision or in the making of the decision. He noted in paragraph 31 that the Applicant had not pointed out any specific error in the decision of the Board. Then in paragraph 32 and 33, he underwent a anxious scrutiny of the Board’s decision but could not detect any errors of law, procedural unfairness and irrationality in the decision.

12.  Despite having been given directions to state his grounds of appeal, the Applicant did not identify any such errors in the Board’s decision or any errors in the Deputy Judge’s decision in not being able to identify those errors. Having rigorously scrutinised the Board’s decision and the Deputy Judge’s decision, this Court is also unable to identify such errors.

13.  In his second ground, the Applicant in substance complained that the Deputy Judge made the decision without an oral hearing or without him being heard. Order 53, rule 3 of the Rules of the High Court provides that a judge may determine an application for leave to apply for judicial review without a hearing, unless a hearing is requested in the notice of application. Given the nature of the application and the availability of appeal against a decision refusing leave, these applications are usually determined without an oral hearing, if having regard to nature of the issues raised, the Board’s decision, the papers, and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing, unless one is requested by the applicant. The Applicant has not requested an oral hearing in his notice of application, ie Form 86 or in his supporting affirmation. Having examined the documents and considered all the circumstances, this Court agrees with the Deputy Judge that the leave application may be justly determined on paper without an oral hearing. The Applicant has not advanced any argument to why and how an oral hearing would have altered the outcome of his leave application. His intended appeal based on these grounds has no realistic prospect of success.

Conclusion

14.  The Applicant has no reasonable explanation for the inordinate delay. His intended appeal has no prospect of success. In view of the conclusions reached above, there is no need to consider the issue of prejudice to the intended respondent if extension of time is granted. His application for extension of time to appeal is refused.