VILLAROSA RHEA LIMBAGA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2834/2018

[2023] HKCFI 523

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2834 OF 2018

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BETWEEN

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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 26 January 2023 (the “Summons”) for extension of time to appeal the order of this Court dated 2 July 2021 (the “Order”) refusing her application for leave to apply for judicial review (the “Leave Application”) of the decision (the “Decision”) of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 20 September 2018. By that Decision, the Board refused to allow her late filing of the notice of appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 15 January 2018 refusing her application for non-refoulement protection (the “Notice”).

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. By the time when the Summons was filed, the application is more than one and half years out of time, which is very substantial in the context of a fourteen-day appeal period.

THE LAW

3.  In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office[1] and 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.

LENGTH OF DELAY AND REASONS FOR THE DELAY

4.  The Applicant’s explanation for the late appeal as stated in her Summons and supporting affidavit is that she had not received the Order and the Court’s Decision timeously to allow her to file her appeal within time.

5.  However, the Court noted that the Order and the Court’s Decision were posted to the Applicant on 2 July 2021 to her address in Tung Lok Street as provided by her in the Form 86, whereas her address as stated in her Summons is in Sai Pin Wai. If in fact she had not received the Order, it was most likely because she had not informed the Court of her change of address.

6.  In fact, the Applicant has an appalling record of defaults. She did not respond to the Court’s letter dated 24 March 2021 inviting her to lodge submissions in support of her Leave Application. She did not attend three hearing scheduled for her in April, May and June 2021. These four letter and notices were sent to her by post to the address she gave in the Form 86. Subsequently, two of the notices were returned undelivered and marked “no such person”. Enquiries with the Immigration Department revealed that the Applicant had reported a different address at Kuk Ting Street. It now transpires that she had moved to yet another address in Sai Pin Wai. She had never informed the Court of her two changes of address.

7.  In Karamjit Singh[3], 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 she did not, she has to bear the consequence of her neglect. She has no explanation for the very substantial delay.

GROUNDS OF APPEAL AND PROSPECT OF SUCCESS OF THE INTENDED APPEAL

8.  The Applicant did not advance any ground of her intended appeal. In the absence of any grounds of application, the Court could only focus on the usual grounds of judicial review, ie error of law, procedural unfairness and irrationality in the Board’s Decision. The Decision in respect of which leave to apply for judicial review was sought was about the Board’s refusal to allow her late filing of the notice of appeal against the Director’s decision in his Notice. She was four days late. Her explanation for the delay was that she could not find any interpreter in the secretariat on her two visits there for the purpose of filing the notice of appeal and those visits were made within time. For reasons as explained in paragraphs 11 to 15 of the Court’s Decision, the Board rejected her explanation for the delay. This is a finding of fact solely for the Board which the Court in a judicial review may not interfere save for errors of law, procedural unfairness and irrationality in the Decision.

9.  This Court had also gone further to explore the merits of the Applicant’s non-refoulement claim in its anxious scrutiny of the Board’s Decision. This Court considered that the interest of justice or high standard of fairness required a consideration of the merits of the Applicant’s non-refoulement claim. For reasons as explained in paragraphs 16 to 19 of the Court’s Decision, the Applicant is not entitled to protection under any of the four applicable grounds. Even if her late filing were allowed, her appeal to the Board was doomed to fail for want of merits. There was no injustice in the Board’s Decision refusing her late filing of the notice of appeal. This Court could not find any vitiating elements in the Decision and hence refused her Leave Application. Her intended judicial review has no prospect of success.

PREJUDICE TO THE RESPONDENT

10.  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

11.  The Applicant has no valid explanation for the very substantial delay. She had repeatedly ignored her obligation to inform the Court of her change of address which resulted in the very substantial delay in raising her appeal. She has demonstrated an absence of will to prosecute her appeal and her non-refoulement claim. 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, her application for extension of time to appeal is refused.