UAMUSSE ELIAS FILIPE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1256/2023

[2025] HKCFI 1026

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1256 OF 2023

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BETWEEN

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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 26 February 2025 (the “Summons”) seeking leave to appeal the order of this Court dated 10 April 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”).

Legal principles applicable to application for extension of time to appeal

2.  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 10 January 2025 when the Summons was filed, he was late by ten months and twenty-two days. Extension of time to appeal is required.

3.  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.

Length of delay and explanation for the delay

4.  A delay of more than ten and half months is very substantial in the context of a fourteen days’ period of appeal. A reasonable explanation for the delay is called for. In his supporting affirmation, the Applicant said he attempted to update his address with the court by letter and was advised on or around 27 December 2023 to do so by completing a Notice of Change of Address for Service and he did so in January 2024. He admitted receiving a Notice of Hearing dated 27 December 2023 from this Court informing him that his leave application will be heard on 18 January 2024. His address as stated in the Notice of Hearing is his new address which he wished to update with the Court. He attended the oral hearing of his leave application. These facts show that his new address is effective for communicating with him.

5.  A check of the court file shows that the Order and Form CALL- 1 had been sent to him by post to his new and correct address on 10 April 2024. The delivery service of the Hong Kong Post is usually very reliable. These documents were never returned to the Court in the course of mail. This fact indicates that the documents had been duly delivered to the Applicant’s new address. Of course, this Court is conscious of the possibility that for some reasons the Applicant has actually not received the documents. Such reasons could only be known to the Applicant and could only be explained by him, if there is any.

6.  The Applicant’s explanation is that he had never received the documents and he was only informed to attend Court on or about 20 February 2025 to obtain a copy when he made enquiries in January 2025. He then obtained a copy of the documents on 20 February 2025. His explanation is plainly and highly incredible. His allegation suggests that the court staff had actually studied the court file and on the basis of the information therein estimated that a copy of these documents will be available after a month. There are two frauds in the Applicant’s story.

7.  Firstly, the court staff, not being the decision maker, could be in no position to make such an estimate. Secondly, the underlying premise of the court staff’s alleged advice is that the decision of the Applicant’s leave application had not yet been reached and the Order and Form CALL- 1 had not yet been made or drawn up at the time of the Applicant’s inquiry. However, on the incontrovertible evidence, the Order and Form CALL-1 had been made and issued in April 2024. A photocopy of these documents could be readily available within minutes of the Applicant’s inquiry. Under the circumstances as described by the Applicant, there was no reason why the court staff would have told him to come to collect a copy a month later. The Applicant’s account cast very serious doubt on his own credibility. His account is just a lame excuse for the ten months’ delay in taking steps to appeal.

8.  Furthermore, the Applicant said in paragraph 8 of his supporting affirmation:

“Despite my best effort to update the Court of my address as per the Court Staff’s instructions, I did not receive any notice about the decision by mail or any other correspondence from the Court since December 2023.”

His assertion of having used his “best effort to update the Court of his address” is just an attempt to pull wool over the Court’s eye to explain his delay and put blame on the Court for failing to take note of his new address. Paragraph 4 above clearly shows that the Court had acted on his new address even before he filed his Notice of Change of Address for Service and that his new address is effective in communicating with him as evidence by his attending the oral hearing. Plainly, he is not telling the truth when he claimed he had not received the Order and Form CALL-1. If he is lying about his encounter with the court staff, the only reasonable inference is that he had actually received the Order and Form CALL-1, otherwise he would have a different and more credible account to give.

Conclusion

9.  The Applicant’s delay is very substantial. His explanation is just a bare assertion. Not only that it is not supported by any credible evidence, documentary or otherwise, the overwhelming evidence and the compelling inference is that he had received the Order and Form CALL-1 in the usual course of mail. He has no explanation for the very substantial delay. The delay reflects an absence of will to prosecute his appeal as well as an underlying lack of merits in his leave application. Another deficiency in his application for extension of time is that he has not advanced any grounds of his intended appeal. There is no need to explore the grounds with him as the absence of a reasonable explanation for such an inordinate delay is a sufficient basis for refusing his application for extension of time. Accordingly, his application is refused.