MOHAMMED KALIM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 2934/2018

[2023] HKCFI 1090

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2934 OF 2018

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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 13 March 2023 (the “Summons”) for extension of time to appeal the order of this Court dated 1 September 2022 (the “Order”) refusing his application for leave to apply for judicial review of the decision (the “Decision”) of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 10 December 2018 (the “leave application”).

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 the judge’s order to the Court of Appeal within 14 days after such order was made. By the time when the Summons was filed, the application is 5 months and 26 days out of time, which is very substantial in the context of a fourteen-day appeal period.

3.  In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office[1] and Director of Immigration and William Lam[2], 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 success in the intended appeal; and

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

Usually, prospect of success in the intended appeal is the determinant factor. If the delay is short and there are reasonable explanations for the delay, the Court would be more relaxed in respect of the other factors. If the delay is substantial and unexplained, usually extension of time will be refused because the statutory time limits are meant to be observed. In addition, an unexplained and substantial delay also reflects an absence of genuine intention to prosecute the appeal, which weighs against granting extension of time to appeal.

LENGTH OF DELAY AND REASONS FOR THE DELAY

4.  In his Summons, the Applicant alleged that he did not receive the Order and Form CALL-1 and he was informed by an immigration officer that his leave application was unsuccessful. The Court notes that the Applicant’s address as stated in his Summons is at Tung On Street, whereas the Order and Form CALL-1 were sent to his last known address at Reclamation Street. To enable him to properly present a case for extension of time, the Court gave him instructions to file a statement stating (i) the date and circumstances under which the Order was brought to his notice; and (ii) his grounds of the intended appeal.

5.  In response, the Applicant filed a statement asserting that he did not appeal within time because he was very sick and did not see the Court’s letter; and his friend did not want to show him the letter containing bad news. Therefore, he only discovered the letter when he was discharged from hospital, but then the time to appeal had lapsed. He exhibited some documents from the Hospital Authority showing he paid hospital fees in January and February 2019 and his hospital bills in April to July 2016. These documents are related to his treatments four to six years before the issue of the Order and Form CALL-1. They are wholly irrelevant and do not explain the delay. Besides, his new story is inconsistent with earlier assertion in his Summons that he was informed by an immigration officer about the outcome of his leave application. His conduct is a clear attempt to mislead the Court. He has no reasonable explanation for the substantial delay of almost six months.

GROUNDS OF APPEAL AND PROSPECT OF SUCCESS OF THE INTENDED APPEAL

6.  The Applicant’s ground of appeal as stated in his supporting affirmation is that he disagreed with the Court’s decision, but gave no particulars. Despite the Court’s specific direction, he has not put forward any grounds of the proposed appeal in his statement. It is well settled law that the role of the courts in judicial review, including the Court of Appeal, 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 only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[3]. The Board’s Decision is basically a finding of fact which the Court in a judicial review will not interfere save for errors of law, procedural unfairness and irrationality in its Decision. For reasons as explained in Paragraphs 23 to 24 of the Form CALL-1, this Court could not find any such vitiating elements in the Board’s finding and Decision.

7.  The Applicant has not advanced any specific challenge of this Court’s Order or decision in the Form CALL-1. He has not identified the errors of this Court in refusing their leave application. Thus, by his intended appeal, he is seeking to challenge this Court’s finding that the Board’s Decision had not been tainted by any of the above vitiating elements, which is the sole ground for which the Court may review the Decision of the Board. He has not provided any arguable basis for challenging this Court’s decision. He has not identified what was wrong with this Court’s finding that the Board’s decision had not been tainted by errors of law, procedural unfairness or irrationality. Having rigorously re-examined the Decision, the Form CALL-1 and all the papers with anxious scrutiny, this Court is unable to detect any such vitiating elements. The Applicant has advanced no valid grounds of appeal against this Court’s Order and decision. His intended appeal has no prospect of success.

PREJUDICE TO THE RESPONDENT

8.  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 which has no prospect of success 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. Allowing the application to proceed may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

CONCLUSION

9.  The Applicant has no valid explanation for the substantial delay and has not advanced any grounds for appeal. 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, his application for extension of time to appeal is refused.