RE JOHNSON KELVIN I

HCAL 2334/2018

[2021] HKCFI 1359

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2334 OF 2018

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DECISION

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INTRODUCTION

Introduction

1.  This is the Applicant’s application by summons dated 4 May 2021 seeking to “challenge the decision” of Deputy High Court Judge C P Pang made on 4 February 2021: (1) refusing his application for extension of time to apply for judicial review of the decision (the “Decision”) of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 1 June 2018; and (2) dismissing his application for leave to apply for judicial review of the said Decision.

2.  It is not entirely clear the nature and subject matter of his application.  From the affirmation filed in support and the chronology of events, it appears that the Applicant is seeking to apply for extension of time to appeal the decision of DHCJ Pang made on 4 February 2020.

3.  The Applicant is a torture claimant.  On 24 October 2018, he lodged an application for leave to apply for judicial review of the Decision of the Board dated 1 June 2018 dismissing his appeal against the decision of the Director of Immigration (the “Director”) rejecting his non-refoulement claims.  Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.  Thus, his application was almost two months out of time.  On 4 February 2021, DHCJ Pang refused his application for extension of time to apply for judicial review and dismissed his application for leave to apply for judicial review.

4.  Three months later, the Applicant filed the present summons seeking to challenge that decision.  Where leave to move for judicial review has been refused by a single judge, the application may not be renewed before another judge: see Hong Kong Civil Procedure 2021, paragraph 53/14/3.  Thus, the only way the Applicant may challenge that decision is to appeal to the Court of Appeal.  Pursuant to section 14AA(1) of the High Court Ordinance, Cap 4, he may do so as of right without seeking leave from the Court of First Instance: see Hong Kong Civil Procedure 2021, paragraph 59/21.  However, he must do so within 14 days from the order he sought to appeal against: see Order 53, rule 3(4).  He is out of time by two and half months.  Pursuant to Order 59, rule 15, he may apply to the court below to extend or abridge the time prescribed for serving notice of appeal.  Hence, I shall treat his application as an application for extension of time for serving notice of appeal against the decision of DHCJ Pang.

5.  In Jagg Sing and Torture Claims Appeal Board/non-Refoulement Claims Petition Office^[1], the Court of Appeal held that in considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended judicial review; and (4) the prejudice to the applicant as against that to the intended respondent if an extension of time were granted.

6.  Before considering the merits of the Applicant’s present application, I shall first set out the factual background leading to his application for leave to apply for judicial review and the decision of DHCJ Pang.

The Applicant’s case for non-refoulement protection

7.  The Applicant’s case for non-refoulement protection is summarized at paragraphs 3 to 6 of the Decision of the Board. Simply put, the Applicant claimed that he would be harmed or even killed by a gang called B2K with which he had associated but had refused to join.  The gang kidnapped and assaulted him in December 2015.  He managed to escape through the help of a gang member. 

8.  The Board dismissed his claims and gave detailed reasons for its Decision.  These reasons are summarized in paragraphs 15 to 46 of the Decision of the Board as follows:

(1)  the Applicant’s claim was vague and unsubstantiated.  The Board has been unable to find information relating to the existence of B2K and the Applicant was unable to explain why there is no information about it (paragraph 15);

(2)  the Applicant was unable to explain why someone who kidnapped him would then help him escape (paragraph 16);

(3)  the Board attached no credence at all to the Applicant’s claim to have been kidnapped (paragraph 17);

(4)  the Applicant did not seek protection in Ghana, where he stayed for two months, nor in Nigeria, nor did he seek protection of Hong Kong authorities until after his arrest, nearly four months after his arrival.  The delay damaged his credibility (paragraph 18);

(5)  the Board attached no credence at all to the claim that he entered Hong Kong in search of international protection (paragraph 19);

(6)  the Board did not accept any part of his claim (paragraph 20);

(7)  the Applicant’s claim that the police in Liberia would not provide protection is untested and fanciful (paragraph 25); and

(8)  in any event, it would be safe for him to move to a different part of Liberia (paragraphs 29 to 30).

DHCJ Pang’s reasons for refusing extension of time

9.  DHCJ Pang referred to the same principles applicable to extension of time to appeal as quoted in paragraph 5 above.  He then said at paragraph 16 of his decision:

“16. In this case, even counting only from the 3-month time limit which ended on 1 September 2018, the application to challenge the Board’s decision was late by more than 1 ½ months. The delay was not a short one. The applicant did not request extension of time or give explanation for the delay. I cannot find any good reason for the undue delay.”

10.  Despite that finding, DHCJ Pang went on to consider the merits of the intended judicial review.  He concluded at paragraphs 17 to 26 of his decision that the intended judicial review had no prospect of success.  He said:

“17.  Nevertheless, I will also consider the merits of the intended judicial review. Far from a case with realistic prospect of success, I am of the view that the applicant has no prospect of success at all.

18.  In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and rejected his account of primary facts based on the implausibility and lack of evidence in support of his account. On the factual findings, there would be no factual basis in support of any of the applicable grounds. The Board also found that he could seek protection from the police and it would be safe for him to move to a different part of his country.

19. As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.

20.  The applicant stated no proper grounds of the judicial review in Form 86. He mentioned nothing in the form or in the affidavit to suggest how the Board erred in the public law sense.

21.  In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

22.  I also agree with the Board that the applicant delayed in lodging the claim for protection after he came to Hong Kong. Such conduct, although not determinative of the claim, was inconsistent with someone in genuine fear for one’s life and safety. It could be taken into account as damaging the applicant’s credibility and adversely affected the credibility of the claim.

23.  Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria. They gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.

24.  There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

25.  Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in their decisions. Nor do I see any failure on their part to apply high standards of fairness.

26.  For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.”

Having reached the above conclusion, DHCJ Pang did not find it necessary to consider the prejudice to the Applicant as against that to the intended respondent if an extension of time were granted.  He refused to grant extension of time to apply and dismissed the Applicant’s application for leave to apply for judicial review.

DISPOSITION OF THE PRESENT APPLICATION

Length of the delay and reasons for delay

11.  The delay in giving notice to appeal the order of DHCJ Pang is two and half months as compared with the period of 14 days allowed under Order 53, rule 3(4).  It is inordinate.  In his affidavit in support, the grounds the Applicant advanced in support of his application is that he did not receive the letter (presumably meaning the notification of the decision of DHCJ Pang) on time.  This is an empty assertion.  It would only take a few days for the notification to reach him by normal course of post.  He gave no credible valid explanation for the inordinate delay of over two and half months.  If he has any valid explanation, credible or otherwise, it is reasonable to expect him to have advanced it, instead of giving such an empty assertion with total lack of particulars, such as the circumstances under which he came to receive the letter late or why it took three months for the letter to reach him.  As a torture claimant, he would not have left Hong Kong for the two and half months around the time of delivery of the notification.  If he was in hospital custody or prison custody (for having taken up unlawful employment which is not unusual for torture claimants and which would not reflect adversely on him), he would not have failed or neglected to put forward that explanation. His failure to give particulars reflects in truth an absence of valid reason.  On this ground alone, his application may be refused.

Prospect of success in application for leave to apply for judicial review

12.  The function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness, unreasonableness or irrationality: see Nupur Mst v Director of Immigration[2].

13.  Having critically scrutinised the Board’s Decision as did DHCJ Pang and for the same reasons, I am unable to find any arguable errors of law, procedural unfairness, unreasonableness or irrationality in the Decision of the Board.  I concur with the views of DHCJ Pang that the intended appeal has no prospect of success.

Balance of prejudice

14.  The Applicant only has himself to blame if extension of time is refused.  Having regard to the lack of prospect of a successful judicial review, he would suffer no prejudice if his application for extension is refused.  But it would take very little to persuade the court that there would be real prejudice to the proposed respondent and to public administration, if a challenge is allowed to proceed after such a gross inordinate delay.  The law has prescribed a period of 14 days for giving notice to appeal.  Finality is of the essence to the Applicant and to the administration represented by the proposed respondent.  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.  Not only would it cause unnecessary waste of judicial and public resources, it would 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.  It may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.  Lastly, this application does not raise any questions of general public importance.  There would be no real purpose to be served to allow the challenge to proceed.

Conclusion

15.  In summary, the delay of two and half months in making this application is inordinate and by any standard undue.  The Applicant offered no credible valid explanation for the delay.  There is nothing to suggest that the Decision was reached as result of procedural unfairness.  There is no error of law in the Board’s Decision.  The Decision is neither irrational nor unreasonable.  There is no prospect of success in the intended judicial review.  In the circumstances, to allow the challenge to proceed despite such undue and inordinate delay would encourage other claimants to indulge in such abuse of legal process and create grave prejudice to the intended respondent and to the administration.  For all these reasons, the application for extension of time is refused.