FONTANILLA DOMINADOR JR ABAYA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1536/2019

[2024] HKCFI 642

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1536 OF 2019

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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 8 January 2024 (the “Summons”) seeking extension of time to appeal the order of this Court dated 22 November 2023 (the “Order”) refusing his application for leave to apply for judicial review (the “leave application”).

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 8 January 2024 when the Summons was filed, his application was thirty-three days out of time. Leave to appeal out of time is required.

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 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 thirty-three days late. It is substantial in the context of a 14 days period of appeal. In response to the Court’s direction requiring him to explain the reason for the delay, he filed an affirmation alleging: (1) that he lived in a subdivided flat without a private letter box; (2) that the mails were collected by his landlord and delivered to the different tenants; and (3) that it was not until 7 January 2024 that his landlord delivered the Order to him. He had no other supporting evidence.

5.  While it is credible that the Applicant does not have a private letter box for receiving mails, it is not credible as a matter of common sense and logic that a landlord would have kept his mails including the Order for one and half months before delivering them to him. The Applicant had no supporting evidence, such as an affirmation or a written statement from his landlord explaining about the way mails deposited into the letter box were handled, who is responsible for collecting the mails, the frequency with which the letter box was cleared and mails delivered, etc. One and half months is not a short time. A lot of mails would have been deposited into the letter box and filled it up. Why would the landlord not clear them and distribute them to his tenants every day or every few days or delegate one particular tenant to do so as a matter of good management?

6.  What further betrayed him is his affirmation filed on 7 February in response to the Court’s direction dated 23 January 2024. He was able to receive the Court’s direction by letter, prepare a typed affirmation, and have it affirmed and filed with registry. All these were completed within 14 days. That indicates his landlord does not have the practice or habit of keeping his tenants’ mails for one and half months before distributing them. More appropriately, the factual circumstances indicate that his landlord’s practice is to collect his tenants’ mails from the letter box regularly and deliver them to his tenants promptly. The circumstances all the more call for a proper explanation from the landlord of the anomaly than to accept the Applicant’s explanation on its face value. I do not accept his explanation, which I consider is nothing but a mere assertion which is incredible, contrary to common sense and contradicted by the surrounding factual circumstances. I find he has no reasonable explanation for the delay.

Prospect of success of the intended appeal

7.  The Court’s direction also required the Applicant to state the grounds of his intended appeal. In purported compliance with this direction, he said in paragraph 4 of his affirmation that he had taken legal advice and understood that “there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review” and that “the Director and the Adjudicator did not saw (sic) the grounds to reverse their decision”.

8.  In paragraph 5 of his affirmation, he asserted that there are merits in this ground of appeal.

9.  In paragraph 6, he said “similar to this there is many more unacceptable and unexplainable grounds, which are shown to refuse my appeal/petition.”

10.  In paragraph 8, he complained that the Director and the Adjudicator wrongly rejected his claim for non-refoulement protection without proper inquiry by visiting his home country.

11.  The other paragraphs in his affirmation are his prayer for relief which have no bearing on his grounds of intended appeal.

12.  The Applicant has been specifically directed to state the grounds of his intended appeal. I have quoted all the grounds contained in his affirmation. In a nutshell, all that he said about his grounds are that having taken legal advice he understood he has a good and meritorious ground of appeal and many more unacceptable and unexplainable grounds. But he never disclosed what that good and meritorious ground is and what those many more unacceptable and unexplainable grounds are. There is a total absence of particulars. As for his attempt to challenge the decision of the Adjudicator or the Director on the ground that they made their decisions without visiting his home country, the short answer is that the high standard of fairness does not require the decision maker to do so. The Applicant’s intended appeal has no prospect of success.

Conclusion

13.  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 respondent if extension of time is granted. His application for extension of time to appeal is refused.