RE SOREN SUME

HCAL 1829/2018

[2020] HKCFI 2998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1829 of 2018

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DECISION

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Background

1.  On 13 July 2020, Deputy High Court Judge Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 24 August 2018.  The Board in its decision upheld the decision of the Director of Immigration (“the Director”) dated 1 September 2017 rejecting the applicant’s non-refoulement claim.

2.  The Judge refused to grant leave to the applicant to apply for judicial review for reasons stated in [16-20] of his decision (Form CALL-1).  Significantly the Judge found in his conclusion that the applicant’s intended application for judicial review had no reasonable prospect of success.

3.  By a summons filed on 18 September 2020, the applicant applied for extension of time to appeal against the Judge’s refusal of leave.  The applicant had 14 days from the order of the Judge to apply to appeal that decision to the Court of Appeal.  She did not do so.  She now requires leave to extend time to appeal against that order out of time.  The 14-day period for her to file her appeal under Order 53 rule 3(4) of the Rules of High Court ended on 27 July 2020.  She was therefore late by nearly 2 months with her intended appeal.

4.  In her summons and supporting affirmation of 18 September 2020, the applicant only said she did not receive the order and judgment within 14 days.  She did not provide any draft or proposed grounds of appeal, or particulars of errors or unfairness of the Judge.

5.  At the hearing, she said she did not get the letter from court as she was pregnant.  She lived on the fifth floor and was unable to get the letters from ground floor because the building has no lift.  As for her grounds of appeal, she said she wants to stay in Hong Kong until she has given birth to her baby.

Discussion

6.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted.

7.  Even if the court finds an applicant’s explanation for delay acceptable, the court should still examine if there is any merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226.  In that case, the crucial question on the merit of the intended appeal is whether the applicant can show that there is a reasonable prospect of success in persuading the Court of Appeal to reverse the decision of the judge.

8.  On the other hand, where the court does not accept the applicant’s explanation for delay, the court will grant extension only if the intended appeal has a real prospect of success: Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re: MA [2019] HKCA 1020; Re Muhammad Shehbaz [2020] HKCA 256.

9.  According to the court’s record, the Judge’s order and the Form CALL-1 were properly served upon the address given by the applicant, who is still using that address.  The documents were sent to the applicant by post and have not been returned to the High Court as unclaimed or undelivered.  Presumably the documents reached the destination.  The applicant’s explanation that she did not get the letters from ground floor as she was pregnant is unacceptable.

10.  In these circumstances, extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal.  In any event, her application has no prospect of success at all.

11.  In assessing the merit of the intended appeal, the court will have regard to the well-established legal principle for dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Assessment of evidence and evaluation of risk are primarily within the province of the Board (and the Director).  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

12.  In his decision dated 13 July 2020, the Judge properly considered all the grounds raised by the applicant and he found all grounds unsubstantiated.

13.  The Judge properly reviewed the decision of the Board with rigorous examination and anxious scrutiny, he could not find any public law grounds that warrant the court’s interference with the decision.

14.  The applicant has not identified any grounds of appeal or errors in the Judge’s decision.  None could be ascertained from the papers or at the hearing.

15.  Having considered the materials before me, I share the Judge’s view that the applicant’s claim for judicial review has no reasonable prospect of success and that leave to apply for judicial review should be refused.  There is no arguable ground to challenge the decision of the Judge.

Conclusion

16.  I cannot see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  Accordingly, I refuse to grant any extension of time, and the summons dated 18 September 2020 taken out by the applicant is dismissed.