Majhi Dolly v. Torture Claims Appeal Board

HCAL 3898/2019

[2025] HKCFI 2271

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 3898 OF 2019

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BETWEEN

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D E C I S I O N

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Background

1.By way of summons filed on 8 May 2025 (“the Summons”), the applicant applies for an extension of time to appeal against my order made on 2 April 2025 dismissing the applicant’s application for leave to apply for judicial review (“the Leave Application”) in respect of the Torture Claims Appeal Board’s decision dated 24 December 2019 (“the Board’s Decision”).

2.Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, stipulates that “Where an application for leave is refused by a judge …, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order”.

3.In Re Li Jing [2015] 2 HKLRD 933, it was held that the time for lodging an appeal against the refusal of granting leave to apply for judicial review started to run from the date of the making of the order, not from the date when the sealed order was issued, nor from the date when the sealed order was mailed, and no account should be taken of the fact that the applicant received the sealed order late (see also Re Gurung Min Bahadur [2018] HKCA 226).

4.As my order was made on 2 April 2025, the last day for the applicant to lodge an appeal was on 16 April 2025. The time for appealing against my order has therefore expired, and the applicant requires leave from this court to appeal out of time.

Grounds for the application for extension of time to appeal

5.In her supporting affidavit dated 8 May 2025, the applicant stated that the reason why she could not file the application in time was that she was detained by the Immigration, and so she could not respond on time.

6.At the hearing of the Summons on 22 May 2025, the applicant claimed that she was detained by the Immigration from 17 April 2025 to 27 April 2025. It means that her detention period was after the deadline for lodging the intended appeal (ie 16 April 2025), and hence her detention could not have affected her as far as lodging the appeal on time is concerned.

7.However, she also claimed at the hearing on 22 May 2025 that she did not receive the Notice of Hearing dated 4 February 2025 for the oral hearing of the Leave Application on 25 February 2025, nor my decision on the Leave Application contained in the Form CALL-1 dated 2 April 2025. She only came to know that a decision in respect of the Leave Application was made when “the brother/friend of her sister” found out from the internet that the decision was made and informed her of the same recently.

8.Thus, the applicant claimed that she could only make the present application for extension of time to appeal recently. As she had not seen my decision at all, she could not provide any ground for challenging my decision. She could only rely on the fact that she did not receive my decision.

Discussion

9.The Notice of Hearing dated 4 February 2025 and the Form CALL-1 dated 2 April 2025 were indeed returned by post to this court on 21 February 2025 and 2 May 2025 respectively both with the remark “Incomplete address/No such address”.

10.In Re Zaheer [2020] HKCA 880, the court of appeal held that “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. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant”.

11.Thus, it would not be a ground for the applicant to challenge my decision based on the fact that she did not receive my decision or the Notice of Hearing dated 4 February 2025, when the address she provided to the Immigration was incomplete or invalid. This court was perfectly entitled to proceed with the determination of the Leave Application when the applicant was absent at the hearing on 25 February 2025, even though the Notice of Hearing was returned on 21 February 2025 due to the incomplete or invalid address provided by the applicant.

12.In fact, the applicant filed an affidavit in further support of the Leave Application on 25 February 2025, ie on the same date of the oral hearing of the Leave Application. It cast doubt on whether the applicant was indeed unaware of the oral hearing.

13.Nevertheless, as the Notice of Hearing dated 4 February 2025 was indeed returned by post, and giving the benefit of the doubt to the applicant, I am prepared to accept that the applicant was unaware of the oral hearing on 25 February 2025. In the interest of justice, the applicant should be given another chance to present her case in an oral hearing to clarify and elaborate the grounds that she had advanced in the Leave Application to challenge the Board’s Decision.

14.However, instead of granting the applicant extension of time to appeal, a better and more efficacious means of disposal is for this court to exercise its discretion under Order 2, rule 1(2) of the Rules of the High Court to set aside its decision in Form CALL-1 and the order on its own initiative and re-fix the Leave Application for hearing (see Re Tehseen Yaseen [2025] HKCFI 1094 and on appeal [2025] HKCA 424).

Conclusion

15.For reasons aforesaid, my order made on 2 April 2025 is set aside, and the Summons is dismissed. The Leave Application will be fixed for another oral hearing by the listing clerk.

The applicant appearing in person