Ranaweere Arachchilage Ruwan Nishantha Ranaweera v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2668/2018

[2023] HKCFI 707

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2668 OF 2018

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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 22 November 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 9 June 2021 (the “Order”) refusing his 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 15 November 2018.

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 one year and five 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], 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.

BACKGROUND

4.The Applicant is a Sri Lankan national. He sneaked into Hong Kong from the Mainland in 2007 and applied for non-refoulement protection on 21 November 2007. By a letter dated 18 April 2016, he applied to withdraw his application because he wanted to go back to Sri Lanka as soon as possible and it was safe for him to return. His request was approved by the Director. But by a letter dated 3 May 2016, he requested to re-open his non-refoulement claim. After due processing, his requested to re-open was refused by the Director by his Notice dated 8 July 2016. He appealed to the Board. His appeal was dismissed by the Board’s Decision dated 15 November 2018.

5.The Applicant applied for leave to apply for judicial review against the Decision on 23 November 2018. By his letter dated 23 April 2019, he applied to withdraw his Leave Application because he wanted to return to Sri Lanka and his problem there has been solved. His application was refused by Deputy High Court Judge Lung who directed that his Leave Application be listed for hearing. The directions were sent to his two addresses at Un Chau Street and Ma Po Ping Road by post on 16 May 2019.

6.On 18 March 2020, the Registry received a letter from the Applicant written in Sinhala language and sent from the Castle Peak Bay Immigration Centre. On the instruction of Deputy High Court Judge Bruno Chan, the letter was returned to the Castle Peak Bay Immigration Centre with a note that the request in his letter will not be processed as it was not written in either of the two official languages of Hong Kong. That letter was returned with a remark that the Applicant had left. Enquiries with the Immigration Department revealed that the Applicant’s last reported address was at Un Chau Street. Notice of hearing of the Leave Application on 2 June 2021 was sent to that address. He did not attend the hearing. Attempts to contact him on the telephone number provided by him to the Immigration Department revealed that the telephone service had been suspended. The Court proceeded to consider his Leave Application on paper. On 9 June 2021, the Order and Form CALL-1 refusing his Leave Application were sent to him at his last known address at Un Chau Street.

7.By his letter dated 12 October 2022, he wrote to this Court asking for the outcome of his Leave Application. He gave his address care of Castle Peak Bay Immigration Centre. A copy of the Order and Form CALL-1 sent to him at that address was returned with a remark that he had moved. Again, inquiries with the Immigration Department revealed that he had been moved to Tai Tam Gap Correctional Institution. A copy of the Order and Form CALL-1 were sent to him at that address. Immediately, he filed this Summons, claiming he had never received those documents before.

8.His motive underlying his conduct of these proceedings is highly suspicious. He was refused non-refoulement protection by the Director and appealed to the Board. Before the appeal was determined, he withdrew his appeal. Then he applied to re-open his application for non-refoulement protection. That was refused by the Director and after his appeal was dismissed by the Board, he applied to the Court for leave to apply for judicial review. Again, before his Leave Application was determined, he withdrew his Leave Application, suggesting he was happy with the decision of the Board or the Director refusing to re-open his application for non-refoulement protection. Then, when this Court refused his Leave Application which has the same effect as allowing his withdrawal of his Leave Application, he wanted to appeal.

LENGTH OF DELAY, EXPLANATION FOR THE DELAY AND PROSPECT OF SUCCESS

9.The Applicant’s explanation for the delay in appealing as set out in his Summons is that he had never received any document from the Court informing him about the outcome of his Leave Application. If he had not received the Order and Form CALL-1, how could he have known that his Leave Application had been refused and that he had to apply for extension of time to appeal?

10.Now, one year and five months later, the Applicant applied for leave to appeal this Court’s decision refusing his Leave Application out of time. In the Summons, he gave an address care of Tai Tam Gap Correctional Institution. The Applicant has a record of defaulting hearing, not responding to the Court’s directions and not informing the Court of his change of address. He gave no explanation for the very substantial delay in appealing. On the information available, it is impossible for the Court to assess if he has any reasonable explanation for this very substantial delay. He also has not furnished the grounds of his intended appeal.

11.Instead of rejecting his application forthwith for want of any reasonable explanation for the delay and want of prospect of success in the intended appeal, to assist him to make a proper application for extension of time, this Court gave him specific directions by letter dated 3 January 2023 to file a statement by 10 January 2023 stating, inter alia, all his correspondence addresses since 23 April 2019 when he applied to withdraw his Leave Application, the dates of his subsequent changes of address, the dates of his informing the Court of the change and the grounds of his intended appeal. As at the date of this decision, sixty-two days have lapsed since the date of the directions, this Court has not received any response from him. He has been given enough indulgence from this Court. Without the information requested, this Court is unable to assess the reasonableness of this very substantial delay. In particular, this Court has no knowledge where he was residing when the Order and Form CALL-1 were sent to him. In the circumstances, this Court could only come to the conclusion that he had not received the Order and Form CALL-1 because he neglected to update the Court of his change of address.

12.And despite the directions, he did not furnish the grounds of his intended appeal. The Decision of the Board revolved around a very narrow compass, ie whether there were any special circumstances which could vitiate the Applicant’s withdrawal of his application for non-refoulement protection before the Director and whether there were any special circumstances which could make the refusal to re-open unjust. Again, despite request for evidence, he offered nothing. For reasons as explained in paragraphs 11 and 12 of the Form CALL-1, his Leave Application is refused. The Applicant offered no grounds to appeal against that decision. This Court is prevented from assessing if there is any prospect of success in his intended appeal.

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 delay. Despite directions having been given to him to file proper explanation for the delay and the grounds of his intended appeal, he did not respond. His 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