RE RASHPAL SINGH

HCAL 297/2019

[2022] HKCFI 699

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 297 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 for extension of time to appeal the order of Deputy High Court Judge Suffiad (“DHCJ Suffiad”) dated 4 November 2021 (the “Order”) refusing to grant him leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”).  On 16 December 2021, 42 days after the Order was made, the Applicant applied by summons for leave to appeal the Order out of time. 

The Law

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 against the judge’s order to the Court of Appeal within 14 days after such order.  The Applicant is 28 days out of time, which is substantial in the context of a 14-day period of appeal.

3.  In Jagg Singh 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 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 appeal; and (4) the prejudice to the respondent if an extension of time were granted.

Length of delay and explanations for the delay

4.  By 16 December 2021, the time to appeal has expired.  The application for leave to appeal is 28 days out of time.  The breach is substantial in the context of a statutory time limit of 14 days.

5.  In his summons, the Applicant advanced the following reasons for applying for leave to appeal the Order out of time:

“I want to appeal to the Court of Appeal but I get High Court after schedule time to appeal. Please extend time for me.”

In his supporting affirmation filed on the same date, he wrote:

“Affirmation for extension of time to appeal, as I failed to appeal. I did not get High Court judgment timely. I wish my time will be extended and I will appeal.”

6.  As may be gathered from the summons and the affirmation, the Applicant’s explanation for the delay in appealing is that when he received the Order, the 14 days’ time to appeal had expired.  He advanced no grounds of appeal.

7.  The Court noted that the Applicant used an address which is different from that used in his Notice of Application for Leave to Apply for Judicial Review (Form 86).  But he has in fact received the Order.  To ensure that nothing went amiss as result of his change of address, on 4 January 2022, this Court gave the Applicant directions by letter requiring him to file a statement within 14 days of the directions stating the following:

(a)  explanation for the delay in applying for leave to appeal or in receiving the decision/order;

(b)  the date when the decision/order in respect of which leave to appeal is sought was received or brought to the notice of the applicant, exhibiting supporting evidence, such as the envelope containing the decision/order showing the date of posting;

(c)  the circumstances under which the decision/order came to the notice of the applicant, exhibiting supporting documentary evidence, if any;

(d)  if the delay is related to change of address, state:

(i)  the date of change of address, exhibiting supporting documentary evidence, if any, such as tenancy agreement, correspondence with government departments, envelopes showing the changed address and date of posting;

(ii)  the date of reporting the change to the Immigration Department, exhibiting supporting documentary evidence, if any; and

(iii)  the date of reporting the change to the High Court, exhibiting supporting documentary evidence, if any.

He was also advised that the application for extension of time will be determined on paper after 21 days from the date of the directions, regardless whether the above directions have been complied with.  

8.  The directions were designed to ascertain the length of the delay and to enable the Applicant to explain the reason for the late receipt of the Order or delay in appealing, which he has hitherto failed to give.  For example, the Order may somehow have been delivered to a wrong address or received by the wrong recipient and then re-directed to him, or the address may somehow have become inaccessible or he may have moved before the Order was posted; and he may for some reason, such as illness or detention in custody, be prevented from initiating the appeal procedure.  The Applicant never responded.  There is therefore simply no explanation for the delay in appealing.

Prospect of success of the intended appeal

9.  The Applicant did not advance any ground of appeal. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  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.  In a judicial review, the court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[2].  In the absence of any specific grounds challenging the Court’s decision in refusing leave to apply for judicial review, in an application to appeal that decision out of time, the court can only focus on the above vitiating elements in the decision.

10.  I have carefully examined the Call-1 Form.  I am satisfied that DHCJ Suffiad had rigorously examined the Decision, the papers and the evidence with anxious scrutiny and was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the issues; the burden of proof and standard of proof; and observed a very high standard of fairness.  He has satisfied himself that the Board’s decision has not been so vitiated.  I agree with that conclusion.  The Applicant’s sole intended ground of appeal being a challenge of the Board’s finding of fact is wholly unarguable.  It has no prospect of success at all.

Prejudice to the respondent

11.  As for prejudice to the proposed respondent, it is unlikely that this issue would be explored in an ex parte application for extension of time.  But the prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed in the absence of a properly formulated ground of appeal with some prospect of success is obvious. His application is an abuse of legal process and 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.  It may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

12.  The delay is very substantial.  There is no valid explanation for the delay and no arguable ground of appeal.  It is a clear abuse of legal process to challenge a decision without proper and good grounds of appeal and which is bound to fail.  Despite having been given a last opportunity to explain the delay in lodging the appeal, the Applicant has failed to do so.  The only reasonable inference is that he has no explanation for the delay and no arguable ground of appeal.  His application is an abuse of legal process.  To allow such a challenge to proceed when it is already out of time would encourage other claimants to indulge in such abuse and create prejudice to the intended respondent and to the administration.  For all these reasons, the application for extension of time to appeal is refused.