Sherpa Mingmar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 863/2017

[2019] HKCFI 1477

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 863 OF 2017

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D E C I S I O N

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Introduction

1.This is an application dated 9 May 2019, to appeal my decision of 12 April 2019, 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.

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 lawfully on 23 November 2013 and thereafter overstayed.  She submitted a non‑refoulement claim form on 13 January 2016 and was interviewed by the Director of Immigration (“the Director”) on 19 April 2016.  The Director dismissed her claim under all heads, by Notice of Decision on 3 June 2016 and by Notice of Further Decision on 28 June 2017.  She appealed those decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Christian Patrick Carney (“the Adjudicator”) heard her on 31 August 2017.  The Adjudicator refused her appeal on 27 October 2017.  

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 9 November 2017 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 12 April 2019.  She had 14 days from that date to appeal that decision which would have expired on 26 April 2019.  By way of summons dated 9 May 2019, 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 15.  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.

5.In order to obtain 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.  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 her delay as this forms part of the consideration of whether there is good reason to allow an extension of time. She claims she did not receive the Order on time despite having given notification of change of address.  The court file suggests that it was properly served upon the address provided on the Form 86, which was Room A, 2^nd Floor, No 222 Temple Street, Jordan.  There is no indication upon the file that this court received any notification of change of address prior to 12 April 2019 when the Form CALL‑1 was posted.  This is because she did not inform the court of her change of address.  She informed the Director.  The applicant maintains that she only learnt of the refusal of leave when an officer from the Immigration Department informed her at some point in April and she immediately came to court to obtain a copy of the Form CALL‑1 and Order.  This was on 30 April 2019 but she submitted her summons for extension of time to appeal only on 9 May 2019, at which time she also submitted a Notice of Change of Address.  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[1]. The consequences of any delay arising from failing to do so will fall upon the litigant[2]. The applicant has not satisfied the court that she did notify the court of her change of address in a timely manner.

6.Whether the court accepts the reasons given for the delay or not, the court is nevertheless required to examine whether there is any merit in the applicant’s appeal[3].

Background

7.The applicant is a Nepalese national born on 1 February 1986.  She is now 33 years old.  She fled Nepal because of an arranged marriage to someone with a criminal background.  However, prior to the marriage occurring, the applicant fled to Kathmandu where she worked as a kitchen worker for several years without harm coming to her even though she believed her family were searching for her and, if found, that she would be harmed by them.  When the restaurant in which she was working closed down in 2013, she came to Hong Kong.  She remained here unlawfully until arrest in June 2014, at which time she applied for refugee status.

8.There were no proper grounds of review for the purposes of the leave application save for an allegation of bias and prejudice by the Adjudicator, which was unsupported.  The applicant has failed to provide any grounds of appeal from the decision of this court.  The applicant was unable to submit any.  There was therefore nothing upon which the court could determine whether there was a reasonable prospect of success in the intended appeal.  Indeed, the applicant admitted that she wishes the Court of Appeal to re‑consider her underlying claim.

9.The role of the court in judicial review is not to provide a further avenue of appeal from the decisions of the Director and the Adjudicator[4]. It follows that an appeal from this court should not be founded upon any attempt to appeal those same decisions.  It is an appeal from the decision of this court and the applicant should look to draft grounds of appeal on that basis, which indicate an error on behalf of this court when dealing with her leave application.  She was unable to indicate any such grounds despite having had professional help with her application today.

Conclusion

10.The delay in filing her appeal is not substantial, however it does arise as a result of the applicant’s failure to ensure the court was able to correspond with her in a timely manner and therefore she must do more than simply explain her failure to do so.  The applicant has now been in Hong Kong since 2013.  She has been interacting with various government agencies for the entirety of that period and accepts she received all necessary documents and notifications.  The explanation she has offered to this court, as to why she did not receive the Order, is not acceptable.

11.In any event, I have considered her underlying application.  It has no merit as explained in the initial refusal of leave. The grounds of review advanced were fact based.  Where they did suggest a basis for judicial review, they were without reference to specifics and nothing could be found within the papers to suggest that they had any merit.  There was no complaint before the court as to the decision of this court to refuse leave. The applicant merely wishes the Court of Appeal to consider her situation afresh.  Having considered the length of delay, the reason for the delay and the 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.

12.The applicant’s summons dated 9 May 2019 be dismissed.

The applicant appeared in person.