BAL TAMANG CHANDRA BAHADUR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1335/2020

[2024] HKCFI 3227

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1335 OF 2020

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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 17 October 2024 seeking extension of time to appeal the order of this Court dated 3 January 2024 (the “Order”)  refusing his 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”).  

Procedural background

2.  The Applicant made a non-refoulement claim on 4 August 2015 which was rejected by the decision of the Director of Immigration (the “Director”)  in his Notice of Decision dated 22 February 2019 (the “Notice”).  He then lodged a notice of appeal against the decision in the Notice (the “NOA”)  with the secretariat of the Board on 12 March 2019.  It was lodged one day late.  Having considered his explanation for the late filing as stated in the NOA, the Board refused his late filing on 5 September 2019 (the “Decision”).  On 29 June 2020, he filed the leave application in respect of the Board’s Decision.  It was filed six and half months out of time.  On 3 January 2024, this Court issued the Order and Form CALL-1 refusing his leave application.  On 17 October 2024, he applied for extension of time to appeal.

3.  There are three late events: (1)  the late filing of the NOA which is the subject matter of the Board’s Decision which the Applicant sought to judicially review; (2)  the late application for leave to apply for judicial review of that Decision; and (3)  the late application for extension of time to appeal this Court’s decision refusing his leave application.

Legal principles applicable to application for extension of time to appeal

4.  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 17 October 2024 when the summons was filed, this application was nine months out of time. 

5.  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.

Discussion

6.  The application is nine months out of time, which is very substantial in the context of a 14-day period of appeal.  In his supporting affirmation, the Applicant claimed he had never received the Order and had not even received the notice of hearing of his leave application, which resulted in his leave application being determined in his absence.  To assist him to present a proper application for extension of time to appeal, directions were given to him to file an affirmation or a statement within 14  days of the directions setting out, inter alia:

(1)  the explanation for the nine months’ delay before taking out this application;

(2)  the date when and circumstances under which he first came to know about the Order;

(3)  all changes of his correspondence addresses since his release from detention in November 2023;

(4)  the dates when he informed the Court and the Immigration Department of the changes, and

(5)  the grounds of his intended appeal. 

7.  His response reached the Court on 11 November 2024.  It was 18 days’ late.  He explained this delay by reason of his being held in custody.  Understanding the inconvenience facing a person in custody and giving him the benefit of doubt, the Court accepted that explanation and proceeds to consider his application for extension of time to appeal.

8.  The Applicant’s explanation for the delay in appealing is that he had never received the notice of hearing of his leave application which resulted in his leave application being determined in his absence; and he had never received the decision of this Court regarding his leave application, ie the Order and Form CALL-1.  He was only informed of the outcome of his leave application by his case officer when he was transferred from Tai Lam Correctional Institution after serving his prison term to Tai Tam Gap Correctional Institution on 1 August 2024. 

9.  Thus, in respect of the initial delay of six and half months before he became aware of the outcome of his leave application, his explanation is that he had never received the Order and Form CALL-1.  He said he had never changed his address since October 2023 as he was residing with his wife and the address he gave to the Immigration Department is the address of his wife.  He did not state his wife’s address.  Accepting what he said to be true, all correspondences from this Court had been sent to him by post to his correct address as the address was obtained from the Immigration Department.

10.  Not only did he claimed he had not received the Order and Form CALL-1, he also claimed he had not received the notice of hearing.  In addition, on 12 December 2023 a notice that the decision will be handed down towards the end of that month had been sent to him by post.  All these documents had been sent to him by post to the correct address.  The delivery service of Hong Kong Post is usually very reliable.  It is very unlikely that two delivery failures could and would have so coincidently occurred to him and in relation to his non-refoulement claim.  If these documents had been delivered to his correct address, it is unlikely that he would not have received them.  Furthermore, unless he had also not received the notice of handing down of the decision, a reasonable applicant in his position and in the face of imminent refoulement would have made some inquiry with the Court about the outcome of his leave application by January 2024 and would not have waited for nine and half months to appeal until he had served his sentence and was transferred to immigration detention on 1 August 2024.  For all three or even two delivery failures to happen to him is too much a coincidence to be true. 

11.  The Applicant has a record of non-compliance with time limits.  He was one day late in filing his notice of appeal against the decision of the Director’s Notice refusing his claim for non-refoulement protection.  He was six and half month late in filing his leave application.  He was nine month late in filing his appeal against the Order.  If he did not deliberately occasion the last two delays for the purpose of delaying his non-refoulement process, he is at least a person with no respect for time limit.  I found his explanation for the initial period of delay is incredible.

12.  Even ignoring that initial delay of six and half months, it was not until 17 October 2024 that he made the present application for extension of time to appeal.  Accepting what he claimed to be true (which I do not), it took him two and half months to make this application.  Even allowing for the inconvenience of being in custody and his ignorance about the appeal procedures, the delay since he was informed of the outcome of his leave application is very substantial in the context of a 14 days’ period of appeal and unexplained.

Prospect of success on appeal

13.  The primary basis of the Court’s decision as stated in paragraph 7 of the Form CALL-1 are the more than six and half months’ delay in filing the leave application and the absence of explanation for the delay.  These factual basis of the decision is incontrovertible.  The legal basis is Litton NPJ’s dictum in Po Fun Chan v Winnie Cheung[2] that “where an application is made many months after the time limit … the judge is entitled to refuse leave, however strong the complaint might otherwise be.” 

14.  The grounds of appeal advanced by the Applicant are just reiterations of the facts of his case and his fear.  He solely emphasized on his fears and wholly ignored the time limits in the procedures.  In fact, he could not dispute the finding of delay and the absence of reasonable explanation or challenge the decision of the Court of Final Appeal in Po Fun Chan v Winnie Cheung.  His challenge of the primary basis of this Court’s decision has no prospect of success.

15.  The secondary basis of the Court’s decision is its finding that the Decision was not made as result of error of law, procedural unfairness or is irrational. Section 37ZT(2)  of the Immigration Ordinance mandates the Board to make a preliminary decision without a hearing whether to allow the late filing.  The subsection requires the Board to only take account of the reasons stated by the Applicant in the NOA, the supporting evidence  and any other relevant matters of fact within the knowledge of the Board.  The Applicant’s explanation for the delay was that he received the Notice on a date which was six weeks after the date he filed the NOA.  The Board rejected that explanation as impossible. After allowing for the time for delivery of the Notice, the Board found that the NOA was filed one day out of time.  Having rejected the Applicant’s explanation, the Board could only come to the conclusion that he had no valid explanation for the delay and hence refused his late filing.  

16.  The issues raised in all the decisions the Applicant sought to appeal or review are related to procedural matters: late filing of NOA, late filing of leave application and late appeal.  The merits of his non-refoulement claim is of no or little significance.  He advanced no arguable grounds as to what was wrong in the secondary basis of the Court’s decision.  His challenge of the second basis of this Court’s decision also has no prospect of success.

Conclusion

17.  The Applicant has no reasonable explanation for the nine months’ delay in making the application to appeal out of time.  He has not demonstrated that his intended appeal has any prospect of success.  Now that when his delay is viewed against his explanation, it became all the more obvious that the delay was deliberate and an abuse of legal process for the purpose of delaying his refoulement process.  Extension of time to file the appeal is therefore refused.