MANJIT KAUR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 511/2022

[2023] HKCFI 1095

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 511 OF 2022

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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 30 March 2023 (the “Summons”) for extension of time to appeal the order of this Court dated 2 February 2023 (the “Order”) refusing her application for leave to apply for judicial review of the decision (the “Decision”) of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 12 May 2022 (the “leave application”).

The Law

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 one months and fourteen days out of time, which is very substantial in the context of a fourteen-day appeal period.

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.

Usually, prospect of success in the intended appeal is the determinant factor. If the delay is short and there are reasonable explanations for the delay, the Court would be more relaxed in respect of the other factors. If the delay is substantial and unexplained, usually extension of time will be refused because the statutory time limits are meant to be observed. In addition, an unexplained and substantial delay also reflects an absence of genuine intention to persecute the appeal.

Length of the delay and explanation for the delay

4.  The application is one month and fourteen days out of time. The explanation for the delay as given by the Applicant in her Summons and supporting affirmation is:

“I am the applicant herein. I am requested to the court my judicial review application refused order by Deputy High Court Judge To, sent to me decision dated 02 February 2023 unfortunately date already gone that’s why I am late filing could you please give to me extension of time bundle of thanks.”

5.  She produced a copy of the Court’s covering letter with a copy of the Order and Form CALL-1. Despite her broken English, the Court understands her explanation to be that by the time she received the Order, the time to appeal has expired. Her explanation is a mere assertion without any supporting evidence. She did not produce, for example, the envelope containing the Order showing the date of posting. She did not state the circumstances under which she received the Order which give a plausible explanation for the late receipt.

6.  The Court staff are under very strict instructions to issue court orders on the date as stated in the order and to the correct address according to the court’s record. As shown in the covering letter exhibited by the Applicant, the Order had been sent to the correct address and received by the Applicant. The delivery service of Hong Kong Post is usually very reliable and punctual. As against the absence of a plausible explanation, the factual circumstances are such that the Court cannot be satisfied that the Applicant has any reasonable explanation for the substantial delay.

Prospect of success of the intended appeal

7.  It is well settled law that the role of the courts in judicial review, including the Court of Appeal, is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In a judicial review, the court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[3]. The Board’s Decision is basically a finding of fact which the Court in a judicial review will not interfere save for errors of law, procedural unfairness and irrationality in its Decision.

8.  The Applicant has not put forward any grounds of appeal. This is an aimless appeal without any ground and for no purpose other than to seek a re-determination by a higher tribunal. She has not identified the errors of this Court in refusing her leave application. Thus, by her intended appeal, she is seeking to challenge this Court’s finding that the Board’s Decision had not been tainted by any of the above vitiating elements, which is the sole ground for which the Court may review the Decision of the Board; but she has not provided any arguable basis for challenging this Court’s decision. She has not identified what was wrong with this Court’s finding that the Board’s decision had not been tainted by errors of law, procedural unfairness or irrationality. Having rigorously re-examined the Decision, the Form CALL-1 and all the papers with anxious scrutiny and for reasons as explained in Paragraphs 19 to 30 of the Form CALL-1, this Court is unable to detect any such vitiating elements. The Applicant’s intended appeal has no prospect of success.

Prejudice to the respondent

9.  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

10.  The Applicant has no valid explanation for the substantial delay. 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.