Re Rathnayake Mudiyanselage Yasomenike

HCAL 586/2019

[2022] HKCFI 2444

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 586 OF 2019

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Before: Hon Campbell-Moffat J in Chambers

Date of Hearing: 4 August 2022

Date of Decision: 4 August 2022

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D E C I S I O N

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Introduction

1.This is an application dated 6 May 2022 to appeal my decision of 9 March 2022 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. The applicant attended court with the benefit of an interpreter.

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 24 November 2005, on a foreign domestic helper visa but her contract of employment was prematurely terminated and she thereafter overstayed. She was arrested on 15 July 2009. She submitted her first non-refoulement (“NRF”) claim on 17 July 2009. The details of the progress of that claim can be found at paragraph 1 of the leave application. She was ultimately interviewed by the Director of Immigration (the “Director”) on 8 June 2016. The Director dismissed her claim under all heads, by Notice of Decision on 29 August 2016 and by Notice of Further Decision dated 25 July 2017. She appealed those Decisions to the Torture Claims Appeal Board (the “TCAB”). The adjudicator of the TCAB, Ms Kay Ransome, refused that appeal on 10 January 2019.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 1 March 2019, 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 9 March 2022. She had 14 days from that date to appeal that decision which would have expired on 23 March 2022. By way of summons dated 6 May 2022, 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 2B(6). 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[1]. An extension of time will not be granted unless there is a real prospect of success[2].

5.In order to obtain that 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.

6.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 his delay as this forms part of the consideration of whether there is good reason to allow an extension of time. The applicant accepted she was late and gave no reason within her Affirmation as to why that was the case other than to say that she did not receive the letter. The Court file suggests that it was properly served upon the address, which is the same address the applicant uses today albeit that was done on 15 March 2022 as the address on the Court file was out of date. Even so, the applicant had till 29 March 2022 to file her appeal and she did not do so. The applicant does not deny that she received the Form CALL-1 promptly. She accepts that she had it interpreted for her and was therefore aware of the 14-day deadline. However, she attended the Sha Tin Magistrates’ Courts for overstaying and no mention was made to her of this matter and therefore she did nothing. She now accepts it was incumbent upon her to file a notice of appeal expeditiously. It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner[3] and to action it. The consequences of any delay arising from failing to do so will fall upon the litigant[4].

7.The Court does not accept the explanation for the delay is a reasonable one given that the applicant admits to having had the documents interpreted to her in a timely manner. However, in deciding whether to shut her out of further proceedings, the Court will examine whether there is any merit in the applicant’s appeal[5]. Whether there is any such merit will depend upon well-established legal principles[6] including the fact that the Court in judicial review is not to provide a further avenue of appeal on the merits of the underlying claim. The applicant has no grounds of appeal, which she wishes to place before the Court, let alone one which truly seeks to review the exercise of a judicial function and in so doing indicate a reasonable prospect of success in the intended appeal[7]. This was explained to her and she simply urged the Court to hear of her continuing troubles in her home country, which, she submits, prevents her from returning home.

8.The applicant has now been in Hong Kong since 2005. That is a substantial period of time. She has been interacting with various government agencies since that date. The explanation she has offered to this court, as to why she did not action the order on time and thereafter deal with it expeditiously is not acceptable.

9.In any event, I have considered her underlying application. It has no merit as explained in the initial refusal of leave. There were no grounds of review and none could be ascertained from the papers. There was no complaint before the Court as to the decision to refuse leave. The applicant merely wishes the Court of Appeal to consider her situation afresh. Having considered the length of delay, reason for the delay and 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.

10.The applicant’s summons dated 6 May 2022 be dismissed.

The applicant appeared in person