VI THI HIEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2222/2023

[2024] HKCFI 1131

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2222 of 2023

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court;

1.  Extension of time to apply for leave for Judicial Review be refused; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 11 December 2023 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 January 2020 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 18 September 2017 (the “Notice”).

2.  The Applicant had requested an oral hearing. Her address as stated in her Form 86 was Tai Lam Centre for Women where she was then held, presumably, under immigration detention. Enquiries with the Immigration Department revealed that the Applicant had been released. The Applicant never informed the Court of her release or change of address. On 18 January 2024, the Court sent a letter to her by post to her address in Yuen Long (the “Yuen Long address”) obtained from the Immigration Department on 7 February 2024. The letter was returned and marked “no such person”, suggesting that the Applicant was not residing at that address. Nevertheless, that is the only available address known to the Court. A hearing was scheduled and notice of hearing was sent to her by post on 22 February 2024. It was not returned through the course of mail. A court staff telephoned her at 4:30 pm on 6 March 2024 in an attempt to remind her of the scheduled hearing. The call was not answered. Though it is highly likely that the Applicant had not received the notice of hearing, as was held by the Court of Appeal in Karamjit Singh[1] and Re Hasmi Rizwan Imran[2], it is the applicant’s obligation to keep the court informed of his means of contact. As the Applicant neglected her duty to inform the Court of her change of address, she has to bear the consequence which his failure brings. Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing. Hence, the Court made the determination in her absence. A decision on the leave application was reached and was in the course of preparation when the notice of hearing was returned through the mail and marked “moved”. The returned notice confirmed that the Applicant had neglected her duty to inform the Court of her up-to-date address. The Order and Form CALL-1 relating to her leave application are therefore sent to the same address, which is now the Applicant’s last known address, in the hope that she had made arrangements for its collection or onward delivery.

3.  The leave application was filed over 3 years 10 months after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was made more than 3 years 7 months out of time. Extension of time to file the leave application is required.

4.  In AW and Director of Immigration and William Lam[3], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the Applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

5.  Merits is usually a very important factor. Where the delay is not very substantial, merits is usually the determinant factor. But it was also held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[4] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”. The delay in this case is so substantial that in the absence of a reasonable explanation, leave may be refused on this ground alone.

6.  The Applicant has given no explanation for the delay in her Form 86 or supporting affirmation. Had she attended the hearing, the Court would have explored with her about her explanation for the delay. But she abandoned the opportunity by not attending the hearing. It is appropriate that leave to file the leave application out of time should be refused without considering merits of the intended review.

7.  However, instead of outright refusing her leave to file the leave application out of time, the Court examined the Decision against her grounds of application. Her grounds are template grounds. Most of the grounds are lacking in particulars and have no bearing on the facts of her claim. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicants’ claim on the basis of the case as she asserted. On the basis of authoritative and credible country of origin information, the Board is also satisfied that state protection and internal relocation are available to prevent or avoid the risk if it turned out to be real. It was on that basis that the Board found that the Applicants had failed to prove their entitlement to non-refoulement protection under any of the four applicable grounds. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

8.  As the Applicant had no reasonable explanation for the very inordinate delay in raising the application for leave to apply for judicial review, leave to file the leave application out of time is refused.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1