RE BITTA SINGH

HCAL 445/2019

[2022] HKCFI 2447

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 445 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 16 May 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 21 April 2022 (the “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 14 January 2019 (the “Decision”).

2.  In his Summons and supporting affirmation, the Applicant claimed that he had never received the Order. Twenty-five days had lapsed since the date of the Order. To assist him in presenting a proper case, this Court gave him directions by letter dated 2 June 2022 to file a statement within 14 days of the letter stating:

(a)  the date when and the circumstances under which the Order was received or brought to his notice with supporting evidence, if any; and

(b)  the grounds of his intended appeal.

He was also informed that his application will be determined on paper 21 days from the date of the directions regardless whether he has complied with the above directions. He did not respond. The letter was posted to him at his address given by him 17 days ago in his Summons. It has not been returned through the post. The delivery service of Hong Kong Post is usually very reliable. There was nothing to suggest the Applicant had moved within those eight days or had not received the letter. He is deemed to have declined providing particulars of his explanation for the delay, supporting evidence and his grounds of the intended appeal.

The Law

3.  In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office[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 success of the intended appeal;

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

Length of delay and reasons for the delay

4.  Any person dissatisfied with the order of the court may appeal that order within 14 days after it was made. By 16 May 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. It was not a particularly long delay. But despite specific directions were given requiring him to give particulars of his explanation and grounds of appeal, the Applicant declined to do so. The only reasonable inference is that he has no explanation for the delay and no grounds of appeal.

Prospect of the intended appeal

5.  The ultimate 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, procedural unfairness and that the Decision was irrational. All these considerations have been set out in the Form Call-1. 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 Decision and Form Call-1 with anxious scrutiny, I am not satisfied that there is any prospect of success in the Applicant’s intended appeal.

Prejudice to the respondent

6.  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. Allowing the application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

7.  The Applicant has no explanation for the delay and has no arguable grounds of 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.