SHRESTHA DEV KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1529/2019

[2024] HKCFI 3013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1529 OF 2019

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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 12 September 2024 seeking extension of time to appeal the order of this Court dated 28 December 2023 (the “Order”) refusing his application (the “leave application”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”). 

2.  By way of background, an oral hearing on 4 December 2023 of the Applicant’s leave application had been scheduled and notice of the hearing had been sent to him by post to his then last known residential address on 17 November 2023.  The notice was not returned through the course of mail.  The Court had not received any notice of change of address from the Applicant. However, he did not attend the hearing.  His leave application was therefore determined on paper in his absence.  A copy of the Order and Form CALL-1 were sent to his residential address on 28 December 2023.  On 15 August 2024, this Court received the Applicant’s letter enquiring about the outcome of his leave application and asserting that he had been in custody since 22 September 2023. Obviously, he had not received the notice of hearing, the Order and the Form CALL-1 because he had not informed the Court about his detention and his change of address as a result.  While sympathetic with the Applicant for the situation which he found himself in, it is his obligation to keep the court or the authorities informed of his means of contact.  If he does not, he has to bear the consequences which his failure brings: see Karamjit Singh[1] and Re Hasmi Rizwan Imran[2].  The natural and inevitable consequences in the circumstances are that he did not receive correspondence from this Court with the result that his leave application was determined in his absence on paper and his appeal fell out of time.  He only had himself to blame.  As per his request, a copy of the Order and Form CALL-1 were sent to him at the facility where he was detained.  His application for leave to appeal out of time was made against the above background.

Legal principles applicable to application for extension of time to appeal

3.  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 12 September 2024 when the Summons was filed, this application was eight months and four days out of time.  Leave to appeal out of time is required. 

4.  In Jagg Singh and Torture Claims Appeal Board / Non-refoulement Claims Petition Office^[3], 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, reasons for the delay and grounds of the intended appeal

5.  The application is more than eight months out of time, which is very substantial in the context of a 14-day period of appeal.  In his Summons and supporting affirmation, the Applicant claimed he had never received the Order. The Court accepts that he had not received the Order and the Form CALL-1 until photocopies of these documents were sent to him on 21 August 2024, but not that he was not to blame.  That explanation only explained the fact of the eight months’ delay, but was not a reasonable explanation in the sense that it was not sufficient to enable him to be relieved of his liability for the delay.  To assist him to give a reasonable explanation for the delay, directions were given to him to file an affirmation or a statement setting out, firstly, the date when and circumstances under which he first came to know about the Order and, secondly, the grounds of his intended appeal. 

6.  In his statement, the Applicant claimed he never received the original copy of the Order and Form CALL-1 and he took the photocopies of those documents he later received from the Court pursuant to his request to the welfare officer who gave him some advice and arranged for his statement to be sent to this Court.  His statement was received within 14 days of the directions.  He progressed diligently with his intended appeal after receiving a copy of the Order and Form CALL-1, but that does not explain his more than eight months delay before he received the photocopies of those documents.

7.  In relation to that earlier delay, he said he was serving a sentence when his friend told him that his leave application had been refused. He said by that time it was already late and stopped short of providing the most important information this Court requested, ie the date when and the circumstances under which he was first informed of the outcome of his leave application.  The Court would also wish to be informed how and why this friend could have access to the information and why this friend could not have helped him to progress with his appeal.  The information was required to enable this Court to assess the credibility of his explanation and the reasonableness of the delay.  Without this information, this Court is unable to make the assessment.

8.  The other reasons he gave were that he was uneducated and his lack of legal and language assistance.  He also attributed part of the delay to his transfer to another detention facility.  There are welfare officers and interpreters in the detention facilities.  They may not be available seven days a week and 24 hours a day, but are reasonably available.  These facts may have some bearing on the length of the delay, but could not account for a delay of more than eight months, particularly in the absence of information about the date when the Applicant was first informed by his friend about the outcome of his leave application.  In conclusion, I find the Applicant has failed to give a reasonable explanation for the very substantial delay.

Prospect of success of the intended appeal

9.  The remaining 15 pages of his statement as well as the 13 pages of Grounds of Summons attached to his supporting affirmation are just extracts from legal authorities and a reiteration of his case presented before the Board.  The Court has no disagreement with the legal principles quoted in those extracts.  But the Applicant did not identify what, in accordance to those legal principles, was wrong with the Decision of Board in dismissing his appeal against the Director’s Notice or was wrong with the decision of this Court in refusing him leave to apply for judicial review. 

10.  His reiteration of his case are, in effect, challenges against the finding of the Board which is not permissible in a judicial review, save for errors of law, procedural unfairness or irrationality in the Decision. This submission had been considered in the Form CALL-1.  One of the reasons for which the Board found the Applicant incredible was that he gave three versions of the monetary transactions among him, his friend and the moneylender.  That is a finding of fact by the Board.  At page 11 of his Grounds of Summons, the Applicant explained that he gave three versions because he is uneducated, does not write and does not read English.  With respect, that could not explain the inconsistency.  As a matter of logic, there is only one truth.  Regardless whether one is educated or literate, if he adheres to the truth in his evidence, there would not be a second version of the truth.  The Applicant advanced no challenge against this finding on the basis of error of law, procedural unfairness or irrationality.  It is difficult to see how the Board’s finding and the Court’s refusal to interfere with that finding by way of judicial review could be criticized.

11.  Despite the length of the documents he submitted, he has failed to disclose any arguable grounds of appeal with prospect of success.

Conclusion

12.  In conclusion, despite clear directions having been given to the Applicant to provide information required to support an application for extension of time, he wholly failed to provide sufficient information to enable this Court to determine if he has a reasonable explanation for the very substantial delay of more than eight months and the grounds of his intended appeal which has prospect of success.  The only inference this Court could draw is that he has neither a reasonable explanation for the delay nor grounds of appeal with prospect of success.  His application is just an abuse of process which is calculated to delay his refoulement process.  In the circumstances, there is no need to consider prejudice to the respondent.  Accordingly, his application for extension of time is refused.