RE KHADKA MENUKA

HCAL 530/2019

[2023] HKCFI 145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 530 OF 2019

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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 5 December 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 15 June 2022 (the “Order”) dismissing her 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”).

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 against the judge’s order to the Court of Appeal within 14 days after such order was made. By 5 December 2022 when the Summons was filed, it was five months and six days out of time. 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 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.

LENGTH OF DELAY AND REASONS FOR THE DELAY

3.  The delay of five months and six days is very substantial in the context of a fourteen-day period for appeal. In her Summons and supporting affirmation filed on the same day, the Applicant admitted having received the Order and Form CALL-1 timeously. Her explanation for the delay in appealing is that she is uneducated, had no knowledge about the appeal procedure, had to rely on her friend’s assistance and her friend made a mistake and adopted the wrong procedure. Her friend filed an originating summons by way of Form 86A on her behalf to apply for judicial review as if her Leave Application had been allowed and paid the filing fee of $1,045. Later, she received a letter from the Registry with an order from this Court expunging her Form 86A and her supporting affirmation and giving her a refund of her filing fee. After further enquiries from another friend, she came to realize that her first friend had adopted the wrong procedure. By then, time to appeal had expired.

4.  Her explanation is consistent with the objective facts. She is a non-refoulement claimant from Nepal with no knowledge of the law and legal procedures in Hong Kong. She has indicated her intention to appeal and taken some steps towards that end, albeit she adopted the wrong procedure. The Nepalese community in Hong Kong is small. Understandably, the assistance from her community is limited and not easily available. Though mistake of the law is no reason or excuse for non-compliance with legal procedure, nevertheless having regard to her personal circumstances and conduct, this Court accepts that as a reasonable explanation.

PROSPECT OF SUCCESS OF THE INTENDED APPEAL

5.  The Applicant had not furnished any grounds of her intended appeal in her Summons or supporting affirmation. Out of abundance of caution, this Court also examined her expunged Form 86A and the accompanying affirmation but could not find any grounds of the intended appeal therein. In the circumstances, the Court could only examine the Form CALL-1 for errors of law, procedural unfairness and irrationality. Essentially, this is a repetition of the rigorous scrutiny of the Board’s Decision, which this Court had carried out before refusing her Leave Application. The Applicant had advanced an eleven-page supporting affirmation in her Leave Application: see paragraph 13 of the Form CALL-1. Her grounds for application revolved around procedural unfairness arising from her lack of legal representation and language assistance and that her life is still danger. Her first two grounds had been thoroughly considered. The reasons for rejecting them were stated in paragraphs 14 to 21 of the Form CALL-1. Her third ground was in fact an attack on the Board’s finding of fact which is not permissible in an application for judicial review. Having rigorously examined the Board’s Decision with anxious scrutiny, this Court was satisfied that there were no errors of law, procedural unfairness or irrationality in the Decision before refusing her leave to apply. Having now rigorously re-examined the Decision and Form CALL-1 with anxious scrutiny, this Court is satisfied of the same and could find no arguable grounds of appeal. This Court is therefore satisfied that there is no prospect of success in the intended appeal.

PREJUDICE TO THE RESPONDENT

6.  The prejudice to the proposed respondent and to public administration is obvious, if her application is allowed. It is a clear abuse of legal process to challenge a decision without proper and good grounds of appeal and which is bound to fail. To allow such a challenge to proceed when it is already out of time would encourage other claimants to indulge in such abuse and create prejudice to the intended respondent and to the administration. 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 her application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

CONCLUSION

7.  The length of delay is substantial, though the Court accepts the Applicant has a reasonable explanation for the delay. However, there is no prospect of success in her intended appeal. Absence of prospect of success is usually determinative for it would be a futile exercise to grant leave to appeal a decision which is already out of time and which is bound to be dismissed. Furthermore, the prejudice to the intended respondent is real. On balance, it is only appropriate that her application for extension of time to appeal be refused.