RE AKHTAR SHAIKH JAWED

HCAL 2657/2018

[2021] HKCFI 2210

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2657 OF 2018

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DECISION

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Introduction

1.  This is the applicant’s application by summons dated 18 June 2021 for extension of time to appeal the order of this Court dated 2 June 2021 (the “Order”) refusing his application for leave to apply for judicial review.  He is two days late.

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 18 June 2021, the time to appeal has expired.  The application for leave to appeal is two days out of time. 

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 the delay and reasons for delay

4.  Directions were given to the applicant to file an affirmation explaining the reasons for the late application and to exhibit proposed grounds of appeal.  The applicant is only two days late.  The breach is not serious.  It would usually be allowed if the applicant could advance an arguable ground of appeal.

5.  In his affirmation, the applicant explained that the Order was made on 2 June 2021 and he did not get the Form Call-1 on time. Then he went to the High Court on 9 June 2021 and obtained a copy of the decision.  When he went to lodge his appeal, he was informed that it was out of time.

6.  The applicant was informed in court on 2 June 2021 that his application was refused.  He did not have to wait for the Form Call-1 to be informed that his application had been refused.  On his own evidence, he obtained a copy of the decision on 9 June 2021 when he could still have lodged an appeal within time.  He did not lodge the appeal promptly and did not explain the reason why he did not.  This short delay is not fatal.

7.  He was required to produce a proposed ground of appeal.  He said the following in his affirmation:

“8. However, I have since taken legal advice and, I understand that there is a good grounds of appeal that was not necessarily considered at the stage of applying for the leave for Judicial Review. … Additionally, I was informed that the Director and the Adjudicator did not saw the grounds to reverse their decision. …

9. I believe that the merits of this ground of appeal constitute sufficient reason justification for the Court to exercise its discretion in allowing this appeal out of time.

10 Similar to this there is many more unacceptable and unexplainable grounds, which are shown to refuse our Appeal/petition.”

8.  In paragraph 8, the applicant asserted that he had taken legal advice and understood that there is a good ground of appeal which had not been considered when applying for leave to apply for judicial review.  But he did not set out that ground.  In paragraph 9, he said he believed there are merits in that ground of appeal but did not set out what the merits are.  In paragraph 10, he claimed there are many more unacceptable and unexplainable grounds.  Again he did not set them out.  In effect, the applicant has failed to put forward any grounds of appeal, let alone an arguable ground of appeal.  The inference to be drawn from his failure to provide arguable grounds of appeal is that he has no arguable grounds of appeal.  His appeal is just stalling for time and not bona fide. Thus, despite the short delay, there is no valid reason for the delay.

Prospect of success of the intended appeal

9.  The thrust of the applicant’s s affirmation is that the Director and the Board were wrong in refusing his application for non-refoulement protection.  In essence, the applicant’s grounds were just attack on the finding of fact of the Board.  All his grounds for applying for judicial review had been considered in paragraphs 8 to 19 of the Form Call-1.  I adopt the reasons stated therein in refusing his application for leave.  In the absence of proper grounds of appeal, I can only infer there is no arguable ground of appeal.  The intended appeal has no prospect of success.

Prejudice to the respondent

10.  As for prejudice to the proposed respondent, usually this issue would not 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 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

11.  In summary, there is no valid explanation for a short delay of albeit two days.  That is not fatal to an application for extension of time.  But the absence of an arguable ground of appeal with prospect of success 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.