Limbu Samita v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 1022/2019

[2023] HKCFI 524

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1022 OF 2019

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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 29 November 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 17 August 2022 (the “Order”) refusing her application for leave to apply for judicial review (the “Leave Application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 27 March 2019.

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 the judge’s order to the Court of Appeal within 14 days after such order was made. By the time when the Summons was filed, the application is almost three months out of time, which is very substantial in the context of a fourteen-day appeal period.

THE LAW

3.In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office[1] and Director of Immigration and William Lam[2], the Court of Appeal held that what may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance in determining whether to grant extension of time:

(1) length of delay;

(2) reasons for the delay;

(3) prospect of success in the intended appeal; and

(4) prejudice to the respondent if extension was granted.

LENGTH OF DELAY AND REASONS FOR THE DELAY

4.The Applicant’s explanation for the delay in appealing is that she had never received the Order and Form CALL-1. The Court noted that the Order and Form CALL-1 were sent to the Applicant’s last known address in Reclamation Street, whereas her address as stated in her supporting affirmation is in Kam Lam Street. If in fact she had not received the Order, it was most likely because she had not informed the Court of her change of address. In Karamjit Singh[3], 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 his neglect.

5.Instead of coming to the conclusion that she has no reasonable explanation for the very substantial delay, out of abundance of caution and with a view to explore the existence of a possible explanation for the delay, this Court gave her specific directions to file a statement with supporting documentary evidence (if any) stating:

(a) all her correspondence addresses since 15 April 2019 which was the date when she last claimed to reside in Reclamation Street in her correspondence with the Court;

(b) her change of address thereafter;

(c) the date of her informing the Immigration Department of her change of address;

(d) the date of her informing the Court of his change of address; and

(e) her grounds of the proposed appeal.

6.In her statement filed in purported compliance with the above directions, she set out what purports to be her grounds of the intended appeal, but she never addressed points (a) to (d) in relation to her addresses. Despite opportunity having been given to her to give information which may assist her to explain the long delay, she chose to avoid giving any. The inference is that she has no reasonable explanation for the very substantial delay.

GROUNDS OF APPEAL AND PROSPECT OF SUCCESS OF THE INTENDED APPEAL

7.Annexed to her supporting affirmation is a written submission containing three “Riders”. In “Rider A”, the Applicant said she was applying for judicial review of the Decision of the Board and the decision of the Director of Immigration. In “Rider B”, she set out the relief she was seeking, including an oral hearing of her Leave Application if leave was not granted on paper. An oral hearing had in fact been scheduled, but she did not appear. Hence, her Leave Application was determined on paper. In “Rider C”, the Applicant reiterated that she was telling the truth and made various complaints which seemingly had no bearing to her Leave Application. In general, her complaints are about the Board’s finding of fact, her credibility and availability of state protection. These are matters solely within the province of the Board, which the Court may not interfere save for errors of law, procedural unfairness and irrationality in the Decision.

8.As her written submission does not disclose any really arguable grounds of appeal, the Applicant was also given directions in the Court’s letter dated 3 January 2023 to file her grounds of the proposed appeal. In her three-page statement file in response, after setting out her background, the purpose of her application and the procedural background, she made various un-particularized attacks on the Board’s Decision of procedural unfairness and/or irrationality. She made a mere allegation of a “cherry-picking and biased and formula approach” in coming to the Decision, procedural unfairness and irrationality in assessing her credibility. But she gave no particulars.

9.As explained in paragraph 13 of the Form CALL-1, finding of fact is solely a matter within the province of the Board which this Court in a judicial review will not intervene save for errors of law, procedural unfairness and irrationality in the Decision: see Nupur Mst v Director of Immigration[4]. The Board found the Applicant’s evidence implausible and concluded that she failed to establish there is a real risk that she would suffer ill-treatment at the hands of her enemy or at all if returned to India. Hence, the Board dismissed her appeal. The grounds advanced by the Applicant cannot be grounds for judicial review, let alone grounds to challenge this Court’s decision refusing her leave to apply for judicial review of the Board’s Decision.

10.She also complained about the Board’s failure to advise her to obtain medical reports and evidence from the Indian authorities when deciding the seriousness of her inquiries (injuries?). But the thrust of her claim is about threat and not physical injuries.

11.The Applicant made a general un-particularized complaint that the Court followed the decision of the Board and the Director of Immigration and found her intended judicial review has no prospect of success. As is mentioned in paragraphs 13 and 27 of the Form CALL-1, the Court was aware that its function in a judicial review is to examine the Board’s Decision for errors of law, procedural unfairness and irrationality in the Decision, but it could not find any such vitiating elements. It was for this reason that it found the Applicant’s intended judicial review has no prospect of success.

12.The Applicant has not advanced any grounds of her intended appeal. In effect, she is seeking to challenge this Court’s finding that the Board’s Decision has not been tainted by any of the above vitiating factors which is the sole ground for which this Court may review the Decision of the Board; but she has not provided any basis for challenging this Court’s decision. Thus, her intended appeal has no prospect of success.

PREJUDICE TO THE RESPONDENT

13.The prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed is obvious. The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement. To allow the challenge which has no prospect of success to proceed would encourage other claimants to indulge in such abuse. It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court. It would render it difficult for the Director to perform his duty of maintaining immigration control. Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment. Allowing the application to proceed may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

CONCLUSION

14.The Applicant has no valid explanation for the very substantial delay. Her intended appeal has no prospect of success. To allow such an un-meritorious challenge to proceed would be prejudicial to the intended respondent and the administration. Accordingly, his application for extension of time to appeal is refused.

The Applicant is not represented