DEUNA LEILA DE LEON v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2634/2019

[2025] HKCFI 4012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2634 OF 2019

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D E C I S I O N

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Introduction

1.  This is the Applicants’ application by summons filed on 25 July 2025 for extension of time to appeal the order of this Court dated 20 May 2025 (the “Order”)  refusing her leave to apply for judicial review (the “leave application”)  of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office.

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 against the judge’s order to the Court of Appeal within 14 days after such order.  The Applicant is one month and fourteen days out of time.  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 delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.  If the delay is not substantial, it would be readily condoned if there is some credible explanation and an arguable ground of appeal.  If the first three factors are resolved against granting leave, there is no need to consider prejudice to the respondent.

Reasons and explanations for the delay

3.  The delay of twenty-one days in an appeal period of 14 days is substantial.  The Applicant’s explanation for the delay as stated in her Summons and supporting affirmation is that she had never received any notification from the High Court about the outcome of her leave application. She said she had to appear in Shatin Magistrates’ Court once every three months and was only informed by the staff of Shatin Magistrates’ Court that her application in the High Court had been refused.  She gave an incomprehensible reason why the staff of the magistrates’ court would have informed her about the progress of her leave application in the High Court.  This Court could find no clue from its court file that it had ever informed Shatin Magistrates’ Court about the progress of the Applicant’s leave application.  Nevertheless, for the present purpose, there is no need to explore the reason with her.  The crucial issue before the Court is her explanation for not having received the Order she sought to appeal.

4.  On the Court’s record, the Applicant had previously informed the Court of her change of address twice.  Her current address in the Court’s record is at Argyle Street.  That is the address to where the notice of hearing, notice of handing down of the judgment and the Order with the Form CALL-1 were sent between 3 March and 20 May 2025.  The Applicant said she had never received any of these documents because she had moved to live in a guest house in Chung King Mansion.  She admitted she had not informed the Court of her change of address.

5.  Her explanation for not informing the Court of her change of address is that the unit in the Argyle Street address and the guest house were rented by her boyfriend.  She was uncertain where she was moving to and her boyfriend was out of Hong Kong.  She had lived with the new tenant in the Argyle Street address for two weeks before leaving.  The new tenant had agreed to inform her of her mails delivered to the Argyle Street address.  She had confidence in the new tenant’s promise.  However, the fact is she never received the various notices and the Order sent to her at the Argyle Street address.  She said that after she was informed by the staff of Shatin Magistrates’ Court about her leave application, she went to look for the new tenant and was given the Order contained in a brown envelope.  Either there was no such mail redirection agreement between her and the new tenant or that the new tenant dishnoured the agreement.  Whatever the situation, the Applicant is responsible for the consequence because of her failure to inform the Court of her change of address.  In Karamjit Singh[2], the Court of Appeal said:

“As we have said before, it is common sense that if a litigant or a claimant does not notify the authority (be it the Immigration Department, the board, or the court)  in his change of address, there would be delay in communication. If he does not do so, he should arrange for timely transmission of mail from his old address to his new address. It is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant, see: Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346. That said, however, we note that the delay in this case was very short, being only some 6 days. In such situations, the board should generally have regard to the merits of the case as disclosed by the available material, rather than simply dismissing the application for lateness.”

It is the Applicant’s duty to report her change of address to the Court.  If she did not, she has to bear the consequence of her neglect. Her explanation is not a reasonable or credible one.

Grounds of the intended appeal

6.  The Applicant’s grounds of appeal are: (1)  that she could not return to the Philippines because she will be killed by her moneylender for being unable to pay the debt she owed him; and (2)  that she is going to marry her boyfriend in September and she will obtain a dependent visa to stay in Hong Kong. 

7.  Under Ground (1), the Applicant is in effect challenging the finding of fact by the Board that she had failed to prove her feared risk of harm to support her claim for non-refoulement protection and this Court’s finding that there are no errors of law, procedural unfairness and irrationality in the Board’s Decision.  Her challenge of the Board’s finding of fact is not permissible in an application for judicial review.  She has also not advanced any reasons or grounds for her challenge of this Court’s Order and the reasons for its decision in the Form CALL-1.  The prospects of her obtaining a dependent visa mentioned under Ground (2)  is not a relevant consideration for her claim for non-refoulement protection.  It has no bearing to her challenge of the Board’s decision or this Court’s decision.  The Applicant has failed to demonstrate she has any arguable grounds of appeal, not to mention one with any prospect of success. 

Conclusion

8.  For the above reasons, the Applicant’s application for extension of time to appeal is refused.