USMAN YUMIATI v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 285/2018

[2020] HKCFI 2701

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 285 OF 2018

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D E C I S I O N

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Introduction

1.  This is an application dated 27 August 2020 to appeal my decision of 7 August 2020, refusing leave to apply for judicial review.  The applicant had 14 days in which to apply to appeal that decision.  She did not do so.  She now requires leave to extend time to appeal against that order.  The applicant attended court with the benefit of an interpreter.

Procedural Background

2.  The applicant is a claimant under Article 3 of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment.  She entered Hong Kong on a Foreign Domestic Helper contract in 2004.  Her last contract of employment ended on 19 September 2013 and she was granted a visa to remain until 14 November 2013 but thereafter she overstayed.  She submitted a non‑refoulement claim on 16 March 2017 and was interviewed by the Director of Immigration (“the Director”) on 12 April 2017.  The Director dismissed her claim under all heads, by Notice of Decision on 18 April 2017.  She appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Ms Susan Marie Pinto (“the Adjudicator”), heard her on 7 September 2017.  The Adjudicator refused her appeal on 27 September 2017.  

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 22 February 2018 and did not request an oral hearing.  The matter was therefore considered on the papers.  Her application for leave to apply for judicial review was refused on 7 August 2020.  She had 14 days from that date to appeal that decision which would have expired on 21 August 2020.  By way of summons dated 27 August 2020, she seeks leave to appeal out of time.

4.  An applicant does not require leave to appeal against a CFI judge’s refusal to grant leave to apply for judicial review (Order 59, rule 21(1)(g)).  The applicant may appeal as of right.  However, an applicant who wishes to appeal against a CFI judge’s refusal to grant leave to apply for judicial review, which is an interlocutory order, has to observe the time limits for appeal under Order 53, rule 3(4) of the Rules of the High Court which allows 14 days.  Where the applicant is out of time to appeal against a judge’s refusal to grant leave to apply for judicial review, an extension of time may be granted by a judge of the Court of First Instance under Order 59, rule 2B(6).  The Court is required to consider (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of success in the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted[1].

5.  In order to obtain that leave, an application must be made promptly and it must be supported by an affirmation or affidavit deposing to any facts relied upon by the applicant and giving a full account of and explanation for the whole of the delay since time expired.  

6.  Whilst the granting of an extension of time is entirely within the discretion of the Court, the applicant is required to explain the reasons for his delay as this forms part of the consideration of whether there is good reason to allow an extension of time.  The applicant accepted she was late because she had not received the Form CALL‑1 from this Court within time.  She maintains that she received it on 26 August 2020. The Court file suggests that it was properly served upon the address provided at the time of the filing of the Form 86, which is the same address that the applicant uses today.  There is no indication that the correspondence was returned to the Court undelivered.  The applicant submits that she uses a shared letter box and does not know why she did not receive the letter.  It is the duty of a litigant to give the Court an address to which correspondence or notice can come to her attention in a timely manner[2].  The consequences of any delay arising from failing to do so will fall upon the litigant[3].

7.  Even if the Court did accept the explanation given for the delay to be a reasonable one (which it does not), the Court is nevertheless required to examine whether there is any merit in the applicant’s appeal[4].  Whether there is any such merit will depend upon well‑established legal principles[5] including the fact that the Court in judicial review is not to provide a further avenue of appeal on the merits of the underlying claim.  There were no grounds of appeal indicated within the supporting affidavit.  In Court the applicant submits that she is in a relationship with a married man who has a wife in China and that there is a child of this relationship who is a Hong Kong citizen.  She wants to remain in Hong Kong until he has completed his education.  She has no other submission to make.  The question for the Court is whether these submissions truly seek to review the exercise of a judicial function and in so doing indicate a reasonable prospect of success in the intended appeal[6]. 

Conclusion

8.  The applicant has now been in Hong Kong since 2004. She has been interacting with various government agencies since that date and was quick to apply for asylum as soon as her last contract came to an end.  She had the benefit of some four years whilst that was processed and thereafter has had the benefit of a further three years due to the difficulties in processing a considerable number of such claims within the judicial system.  She has clearly understood her situation throughout and that whilst her son may have the right to remain, she does not.  

9.  In any event, I have considered her underlying application.  It has no merit as explained in the initial refusal of leave.  There were no grounds of review and none could be ascertained from the papers.  There was no complaint before the Court as to the decision to refuse leave.  The applicant merely wishes the Court of Appeal to consider her situation afresh.  Having considered the length of delay, reason for the delay and underlying merits of her application, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

10.  The applicant’s summons dated 27 August 2020 be dismissed.