RE GULL WASEEM

HCAL 550/2019

[2022] HKCFI 1325

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 550 OF 2019

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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 4 March 2022 (the “Summons”)  “for apply due to lack of knowledge and insufficient sources.”  His application is framed in the following manner:

“Respected Sir/Madam, I am late for apply due to lack of knowledge and insufficient sources. Please accept my filling (sic)  application so that I can process my case further. I hope I will get your favour.”

The averment in his supporting affirmation is identical.

2.  The Applicant did not precisely identify the subject matter of his application.  Previously, a Call-1 Form dated 7 February 2022 (the “Order”)  was issued refusing his Notice to apply for judicial review (Form 86)  dated 26 February 2019.  He acknowledged he was late in making the present application. Presumably, his Summons is to apply for extension of time to appeal my Order refusing him leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”)  dated 20 December 2018 (the “Decision”).   Any person aggrieved by an order of the court may appeal within 14 days after the date of the order.  The Applicant’s application was made eleven days out of time.

3.  To assist him in presenting a proper case, this Court gave him directions by letter dated 15 March 2022 to file a statement within 14 days of the letter stating:

(a)  the circumstances he came to know about the Order;

(b)  the explanation for the late application; and

(c)  the grounds of his intended appeal.

He was also informed that his application will be determined on paper 14 days after the date of the directions without a hearing whether he has complied with the above directions or not.  He did not respond.  The letter was posted to him at his address given by him eleven days ago in his Summons. It has not been returned through the post.  There was nothing to suggest he had moved or has not received the letter.  He is deemed to have declined providing his grounds of the intended appeal.

The Law

4.  In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and Director of Immigration[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 the intended appeal;

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

Length of delay and reasons for the delay

5.  By 4 March 2022 when the Summons was filed, twenty-five days had lapsed since the date of the Order.  The application is eleven days out of time, which is not very substantial in the context of a fourteen-day appeal period.  The Applicant’s explanation for the delay is his own lack of knowledge and sufficient resources.  Though not a reasonable excuse, this Court was prepared to condone his delay if he has any prospect of success in his intended appeal.

Prospect of the intended appeal

6.  The subject matter which the Applicant seeks to challenge in the intended judicial review is the finding of the Board in its Decision.  The Applicant declined providing his grounds of intended appeal. The only way the Court could assess the prospect of success of his intended appeal is to re-examine the Decision afresh.  In an application for leave to apply for judicial review, an applicant may only challenge the Board’s finding on the grounds that it was made as result of errors of law, or procedural unfairness or that the Decision was irrational.  All these considerations have been set out in the Call-1 Form.  The decision to refuse his application for leave to apply for judicial review was made after rigorous examination of the Decision with anxious scrutiny.  Given the limited scope in which an applicant may challenge the finding of the Board in a judicial review and having rigorously re-examined the Call-1 Form with anxious scrutiny, I am not satisfied that there is any prospect of success in the Applicant’s intended appeal.

Prejudice to the respondent

7.  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 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.  This application does not raise any questions of general public importance.  Allowing the application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

No questions of general public importance

8.  The application does not raise any questions which are likely to have to be resolved by the courts in any event.

Conclusion

9.  The Applicant has no arguable grounds of appeal and has no valid explanation for the delay.  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, the application for extension of time to appeal is refused.