Chantharasiri Singha v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 717/2019

[2024] HKCFI 1300

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 717 OF 2019

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BETWEEN

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D E C I S I O N

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The application

1.The applicant is an illegal immigrant by staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected his claim. He appealed to the Torture Claims Appeal Board (“the Board”). By Decision dated 3 February 2017 (“the Board’s Decision”), the Board dismissed his appeal.

2.Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3.By Order dated 13 January 2023 (“the Court’s decision”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended application. The Court’s decision was, by order of the Court, re-sent to the applicant on 27 March 2023 and 20 December 2023 respectively. The effective date for service of the Court’s decision is therefore deemed to have served on the applicant on 21 December 2023, which is not a specified day, pursuant to Order 65, rules 5 and 7 of the RHC^[1]. The deadline for appeal is on 5 January 2024.

4.By summons filed on 5 February 2024, the applicant applied for appeal against the Court’s decision out of time. His application is late for one month.

5.In his affirmation in support of his application, the applicant said that the Court’s decision was reached without his attendance.

Discussion

6.Relying on Ogbozor Tochukwu Eugene v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2022] HKCA 607, Hon Kwan VP and G Lam JA, 6 May 2022, I decide to determine this application on paper without an oral hearing.

7.The Court shall consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

8.In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

9.The applicant said that if refouled, he would be harmed or killed by an unknown killer and the followers because he witnessed their criminal act of murdering a person.

10.The Director rejected his claim because it was not substantiated. He appealed to the Board.

11.His application for appeal to the Board was late. The Board had considered his explanation but refused to accept it. However, the Board did not consider the merits of his case. It dismissed his appeal solely for the reason he did not file his notice of appeal within time without justifiable reason.

12.On the face of it, the applicant has an arguable case in view of the Court of Appeal’s decision in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019, §§18 & 20.

13.However, he was also late for his application for judicial review of the Board’s Decision. The delay is more than 1 year and 10 months. See paragraph 14 of the Court’s decision. In his affirmation in support of his application, he said that he still had problem in his country. He did not give any explanation for his delay. I therefore found that the applicant had given no acceptable explanation for his delay. On this basis, the Court refused to extend time for him to make his application for leave for judicial review of the Board’s Decision. My decision was based upon the decision of the Court of Appeal in AW v Director of Immigation and William Lam CACV 63/2015, Hon Lam VP, Kwan and Poon JA (as they then were), 3 November 2015, in which the Court of Appeal held:

“27. In Re Thomas Lai [2014] 6 HKC 1, G Lam J considered the relevant authorities and stated the principles to be applied in an application to extend time for judicial review in §§43 to 45. I take the following summary of these principles from the submission of Ms Sara Tong, who appeared for the Director:

(3) 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:

(i) Length of the delay: Obviously the longer the delay, the more cogent the reason has to be for extending time.

(ii) Explanation for the delay: While Order 53 rule 4(1) requires a good reason for extending time, rather than a good excuse for the delay, it is common sense that the presence of a credibly valid explanation for the delay will strengthen, and conversely the absence of any acceptable explanation will weaken, the applicant’s request for what is after all an indulgence to be granted to him in the court’s discretion.

(iii)Merits of the substantive application: Although merits of the challenge of the administrative decision are a significant matter to be taken into account, it is by no means the sole criterion. Where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be” (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ). An applicant who sleeps upon his rights may be barred from pursuing them in judicial review even though he may have a meritorious case (Law Chun Loy v Secretary for Justice, HCAL 13/2005, 26 October 2006, at §13, per Hartmann J)….”

14.No doubt, the applicant’s delay for apply for judicial review of the Board’s Decision is serious, by the standard of the AW case. He has given no explanation for his delay. But he has merit in his intended application for judicial review of the Board’s Decision.

15.I consider that the applicant may have an arguable case for this Court’s refusal to extend time for him to apply for judicial review of the Board’s Decision for his serious delay notwithstanding that he had an arguable case against the Board’s Decision.

16.In the circumstances, I extend time for the applicant to appeal against the Court’s decision. The applicant shall file his notice of appeal within 14 days from the date of this Order.

The applicant was unrepresented.