RE RAZIB

HCAL 2268/2018

[2021] HKCFI 1632

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2268 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 dated 27 May 2021 for extension of time to appeal the order of this Court dated 21 April 2021 (the “Order”) refusing his application for leave to apply for judicial review.

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.  By 27 May 2021, the time to appeal has expired.  The application for leave to appeal is 22 days out of time.  The breach is serious relative to the period of appeal of 14 days.

3.  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 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 the delay and reasons for delay

4.  The applicant asserted in the summons that he did not receive Order on time.  He said:

“… As I did not get order on time and as I have to apply the Court of Appeal in out of time, so I am requesting for the time extension for the leave be granted. Rest of the grounds are in the affirmation set.”

In his supporting affirmation filed on the same day, he attached an unsigned two-page statement setting out nine grounds. The first five of these grounds purport to explain the delay in making the application.  In summary, he said he received the judgment (ie the Form Call-1) on 24 May 2021, by then the time to appeal has lapsed.  He is uneducated and need to seek advice and language assistance from his friends.

5.  It is accepted that it may take him a few more days to seek advice and language assistance.  Apart from that, these grounds did not set out the circumstances under which and the reasons why he only came to receive the Form Call-1 on 24 May 2021.  In view of the fact that according to the court’s record, the Form Call-1 was sent to the applicant on 21 April 2021, the applicant’s assertion is of doubtful credibility.  He did not produce any documentary evidence in support, such as the envelope with postmark with which the Form Call-1 was sent to him.  His assertion is just an empty one and it begs the question why he was late.  There is no valid reason for the delay.

6.  Though the applicant is acting in person, that is not a reason that he should be spared from having to comply with the requirements before the court may exercise any discretion in his favour.  In an appropriate case, the court could assist by giving him directions on how to perfect his application, including giving him time to file a supplemental affirmation stating his further reasons for the delay and producing supporting documentary evidence.  However, for reasons as will become obvious, I do not consider this necessary.   

The applicant’s case and the finding of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”)

7.  The applicant’s case is that he was being targeted by the opponent political party which has become the ruling party in Bangladesh. The Board basically accepted the applicant’s evidence given at the oral hearing before the Board and in the documents he submitted: see paragraphs 3 to 11 of the Form Call-1.  But, on those evidence, the Board was not satisfied that his life was at risk because the injuries he suffered were not severe.  The Board also found that state protection is available to prevent the risk of harm: see paragraphs 12 to 18 of the Form Call-1.

The grounds for judicial review and decision of this Court now sought to appeal against

8.  The essence of applicant’s grounds for leave to apply for judicial review is procedural unfairness in that he did not have legal and language assistance and the Country of Origin Information relied on by the Board were not officially recognized and hearsay only.  These grounds were considered and rejected in paragraphs 15 and 16 of the Form Call-1 respectively.  In substance, he was seeking to challenge the finding of facts of the Board under the guise of judicial review which is not permissible.  This was also explained in paragraph 17 of the Form Call-1.

9.  In his supporting affirmation, the applicant stated nine grounds of appeal.  The first five of these grounds are explanations for his late application which have been dealt with above.  His remaining grounds are as follows:

“(6) I believe that the merits of this grounds (sic) of appeal constitute sufficient reason justification for the court to excercise (sic) its discretion in allowing this appeal put of me.

(7) Similar to this, there are many more unacceptable and unexplainable grounds, which are shown to refuse my appeal petition.

(8) I am a genuine Non-refoulement claimant who faced all the dangerous problems and harassment and tortured in Bangladesh. I am unable to find any place to stay safely in my home country, so I fled abroad to save my life. I think I am the likiest (sic) man who succeeded to escape from danger and life and still alive today.

(9) If I did not run away, I would certainly would have been killed by my enemies.  My problems were getting more and more life threatening day by day, I had no other choice but to escape to Hong Kong.”

10.  In Ground (6), the applicant claims there are merits in his intended appeal which is likely to successful.  But he did not give particulars what those merits are.  Likewise, in Ground (7), he asserts that many of the grounds given in refusing his application are unacceptable and inexplicable.  Again, he did not give particulars.  These two grounds are just empty assertions.  Grounds (8) and (9) are statements of facts which were rejected by the Board in its finding of facts.  They cannot constitute arguable grounds for appeal. Accordingly, I come to the conclusion that the applicant has not advanced any arguable ground of appeal which has any prospect of success. 

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. It 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 of Immigration 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.  In summary, there is no valid explanation for the delay of a not insubstantial length of time of 22 days.  That is not necessarily fatal to the application for extension of time.  But the absence of a good ground of appeal is.  It is an abuse of process to challenge a decision without proper and good ground of appeal and which is bound to fail.  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.