RE WAJID MUHAMMAD

HCAL 54/2022

[2022] HKCFI 2789

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 54 OF 2022

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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 20 June 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 31 March 2022 (the “Order”) refusing him leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / non-Refoulement Claims Petition Office (the “Board”) dated 6 December 2021 (the “Decision”).

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. 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 reasons for the delay

3.  By 20 June 2022 when the Summons was filed, 81 days had lapsed since the date of the Order. The application is 67 days out of time. The delay is substantial in the context of a 14-day appeal period. In his Summons, he claimed he never received the Order and that he only came to know about it when he reported his recognizance in the Immigration Department. In his supporting affirmation, he said that he did not know how to appeal; that he was detained in custody; and that he will furnish his grounds of the intended appeal later.

4.  The Court noted that the address he gave in his Summons is different from the address to which the Order was sent. Possibly, he did not receive the Order because he had moved without updating his new address with the Court. To assist him in presenting a proper case for extension of time, this Court gave him directions by letter dated 7 July 2022 to file a statement within 14 days of the letter setting out all his addresses since his last discharge from Castle Peak Bay Immigration Centre; the date of his changes of address; the date of his reporting the changes to the Immigration Department and to the High Court; and the grounds of his intended appeal. He was also informed that his application for extension of time will be determined on paper after 21 days from the date of the letter.

5.  The letter was sent to him at his address in Pitt Street as stated by him in his Summons and affirmation dated 20 June 2022. It was returned through the course of mail on 16 August 2022 and marked "Incomplete address / No such address". The delivery service of Hong Kong Post is usually very reliable. The postman would not have made such a remark if he was able to identify a deliverable address. As the Applicant gave a defective or non-deliverable address he only has himself to blame for the consequence.

6.  As the Court observed earlier, the address he gave in his Summons is different from the address to which the Order was sent. In his Form 86, he gave an address care of Castle Peak Bay Immigration Centre where he was then detained. He did not update the Court with his address after his discharge from the institution. On 25 March 2022, the Court obtained his updated address at Argyle Street from the Immigration Department upon his discharge. The Order and Form Call-1 were sent to the Argyle Street address. The Applicant’s current address as stated by him in his Summons in Pitt Street is defective. The Court has no record of any change of address having been reported by the Applicant. In the circumstances, the irresistible inference is that the reason for his non-receipt of the Order is his neglect in updating his change of address with the Court. In Re Karamjit Singh[2] and Re Hasmi Rizwan Imran[3], the Court of Appeal held that it is the applicant’s duty to report his change of address to the Court. If he did not, he has to bear the consequence of his neglect. Hence, there is no valid explanation for the delay.

Prospect of success of the intended appeal

7.  In his supporting affirmation, the Applicant said he will provide the grounds of his intended appeal later. But despite the Court’s specific request for the grounds of his intended appeal, he did not respond. The inference is that he has no arguable grounds of appeal. Without even knowing what his grounds of appeal are, it is very difficult to assess the prospect of success of the intended appeal.

8.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a non-refoulement claim 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 of that decision, 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[4]. Thus, in the absence of any specific grounds challenging the Court’s decision in refusing leave to apply for judicial review and in an application to appeal that decision out of time, the best the court can do is to re-assess the decision focusing on the above vitiating elements.

9.  I have rigorously re-examined the Form Call-1, the Decision, the papers and the evidence with anxious scrutiny. I am 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. I am satisfied that the Board’s Decision has not been so vitiated. On the material now available, the Applicant’s intended appeal has no prospect of success at all.

Prejudice to the respondent

10.  The prejudice to the proposed respondent and to public administration if a belated 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. It may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

11.  There are no valid explanations for the substantial 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 furnish his grounds of 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.