DO KHANH DUONG v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1301/2021

[2023] HKCFI 706

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1301 OF 2021

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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 25 October 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 10 June 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 28 June 2021.

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 four months and one day 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 AW v 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 EXPLANATION FOR THE DELAY AND PROSPECT OF SUCCESS

4.  The Applicant’s explanation for the delay in appealing as set out in his supporting affirmation is that he had never received any letter from the court informing him that his Leave Application had been refused. He also said he did not speak English or Chinese and did not know how to appeal. Except for his complaint of non-delivery of the Order and Form CALL-1, his other explanations are usually regarded as not valid. His explanation of non-delivery is also incredible. If he had not received the Order and Form CALL-1, how could he have known that his Leave Application had been refused and that he had to apply for extension of time to appeal? In his Summons, he asked for leave to advance a new ground of appeal, but he did not give particulars of that new ground.

5.  The Applicant gave a correspondence address care of Castle Peak Bay Immigration Centre in his Form 86. Previous correspondence sent to him at that address was returned undelivered showing that he had been discharged from that facility. Enquiries with the Immigration Department revealed that as at 9 June 2002 the Applicant’s last reported address upon his discharge was at Wong Chuk Street. The Order and Form CALL-1 were therefore sent to his last known address in Wong Chuk Street on 10 June 2022. They were not returned through the mail. Then, by a note dated 24 June 2022 the Applicant informed the Court his up-to-date address at Pang Ching Street. That note did not inform the Court when the change took effect. The Court has not been informed of his change of address before 10 June 2022 when the Order and Form CALL-1 were sent. If in fact the Applicant had not received them, it was most likely because he had moved without updating the Court of his change of address before the Order and Form CALL-1 were sent. 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 he did not, he has to bear the consequence of his neglect.

6.  Instead of rejecting his application forthwith for want of any reasonable explanation for the delay and want of prospect of success in the intended appeal, to assist him to make a proper application for extension of time, this Court gave him specific directions by letter dated 3 January 2023 to file a statement by 10 January 2023 stating, inter alia, the date and circumstances when the Order was received by him or brought to his attention, his correspondence addresses since 10 June 2022, the dates of his subsequent changes of address, the dates of his informing the Court of the change and the grounds of his intended appeal. As at the date of this decision, sixty-two days have lapsed since the date of the directions, this Court has not received any response from him. He has been given enough indulgence from this Court. Although the Applicant only narrowly missed the Order and Form CALL-1, without the information requested, this Court is unable to assess the reasonableness of the delay. In the circumstances, this Court could only come to the conclusion that he had not receive the Order and Form CALL-1 because he neglected to update the Court of his change of address.

7.  Notwithstanding the above, as he had nevertheless made an effort to update the Court with his change of address (albeit too late), this Court was prepared to grant him further indulgence if he could demonstrate an arguable ground of appeal. However, despite the directions, he did not furnish the grounds of his intended appeal. This Court is prevented from assessing if there is any prospect of success in his intended appeal.

PREJUDICE TO THE RESPONDENT

8.  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

9.  The Applicant has no valid explanation for the delay. Despite directions having been given to him to file proper explanation for the delay and the grounds of his intended appeal, he did not respond. His 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, his application for extension of time to appeal is refused.