RE BRAVO ROLDAN GUISINGA

HCAL 268/2019

[2022] HKCFI 505

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 268 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 for extension of time to appeal the order of Deputy High Court Judge Suffiad (“DHCJ Suffiad”) dated 4 November 2021 refusing to grant him leave to apply for judicial review (the “Order”).

2.  On 28 January 2019, the Applicant filed an application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 16 November 2018 (the “Decision”). By that Decision, the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 26 January 2018 refusing his application for non-refoulement protection. On 15 December 2021, about one and half months after the Order was made, the Applicant applied by summons for leave to appeal the Order out of time.

The Law

3.  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.

4.  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 explanations for the delay

5.  By 15 December 2021, the time to appeal has expired. The application for leave to appeal is 27 days out of time. The breach is not insignificant in the context of a statutory time limit of 14 days.

6.  In his summons, the Applicant advanced the following reasons for applying for leave to appeal the Order out of time:

“… But I didn’t receive any Order from the Court. I received Order from the Court on 15-12-2021 from LG1. The Learned Judge was wrong in accepting the adjudicate finding the only fact established is that the Learned Judge had failed to consider all applicable grounds of risk of violation of articles 2 and 22 of the Hong Kong Bill of Rights Ordinance.”

Presumably, his explanation for the delay is that he had not received the Order through the post but he was somehow informed about the Order and came to the Registry to collect it on 15 December 2021. The grounds of his appeal is that DHCJ Suffiad was wrong in upholding the finding of the Board for failing to consider all applicable grounds available under the Unified Screening Mechanism (the “USM”), in particular articles 2 and 22 of the Hong Kong Bill of Rights Ordinance.

7.  In his supporting affirmation filed on the same date, he repeated that he had not received the Order.

8.  As his explanation for the delay is ambiguous, I gave specific directions on 31 December 2021, requiring him to file a statement giving the following particulars:

(a) explanation for the delay in applying for leave to appeal or in receiving the Order;

(b) the date when the Order was received or brought to his notice;

(c) the circumstances under which the Order came to his notice;

(d) if the delay is related to change of address, state:

(i) the date of change of address;

(ii) the date of reporting the change to the Immigration Department; and

(iii) the date of reporting the change to the High Court.

He was told to exhibit documentary evidence, if any; and that the application for extension of time will be determined on paper after 21 days from the date of the directions, regardless whether the above directions have been complied with.

9.  On 14 January 2022, the Applicant responded. He only gave the following explanation:

“So as an Assylum Seekers in Hong Kong and a Layman when I went to immigration the Immigration Department; The Immigration Department told me that my appeal for leave to apply for Judicial review refused, so you can go to the Court and appeal again, if you want to stay in Hong Kong. As a Layman I don’t know what to do, So I take help of a guy who came to the Court with me and take out my decision from the Court, which I paid to the Court 18 dollars. I have a receipt of that. After that I saw in my decision that the time for apply for leave to apply for Judicial review was finished and its late to apply for Judicial review again. So that’s the reason I filed Summons to the Court to please give extension of time that I would appeal again on Your Honour’s Court.”

10.  This statement confirmed that my surmise in paragraph 7 is correct, but it added nothing. He did not respond to the specific directions given. In fact, he avoided giving the particulars of the circumstances under which he was informed by an immigration officer about the Order. That casts doubts on the credibility of his assertion that he had not received the Order through the post. He may perhaps have been informed by the officer when he went reporting his recognizance. But that is not what he said.

11.  Most importantly, he did not give the particulars requested in paragraph 8(d). In the light of his reply, the most likely explanation for his not receiving the Order would be that he had moved without informing the Court his new address. The particulars requested in paragraph 8(d) are designed to deal specifically with this issue. As the Court records show, he used the address in Jordan Road in his Notice of Application for Leave to Apply for Judicial Review (Form 86) on 10 January 2019. This Court was able to maintain contact with him using that address until at least 8 June 2021 when he responded to my clerk’s letter dated 28 May 2021 inviting him to make submissions within 14 days. My clerk specifically reminded him to notify the court at his soonest possible convenience if he changed his residential address and telephone number. His reply was addressed to my clerk within 14 days showing that he was responding to her letter. It is significant that up till then, he could be reached at the Jordan Road address and he knew he had to inform the Court of his change of residential address as soon as possible. The Order and the Call-1 Form which the Applicant complained he had not received were sent to his address at Jordan Road within the next five months. Now, in his application for extension of time, he gave an address in Shanghai Street as his residential address. The only reasonable inference is that he changed his address between 8 June and 4 November 2021 without informing the Court. He had been specifically reminded by my clerk to inform the Court of his change of address. His failure to provide the particulars reinforced the above inference.

12.  In Karamjit Singh[2], the Court of Appeal said:

“As we have said before, it is common sense that if a litigant or a claimant does not notify the authority (be it the Immigration Department, the board, or the court) in his change of address, there would be delay in communication. If he does not do so, he should arrange for timely transmission of mail from his old address to his new address. It is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant, see: Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346. That said, however, we note that the delay in this case was very short, being only some 6 days. In such situations, the board should generally have regard to the merits of the case as disclosed by the available material, rather than simply dismissing the application for lateness.”

Thus, 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. His submission that being a layman, he has no knowledge of the law and the time limit is no excuse. This is particular so in the present case as he had been reminded to inform the Court of his change of address within less than six months before the change. There is no valid explanation for the delay. He has to bear the consequence of the delay.

Prospect of success of the intended appeal

13.  The Applicant’s sole ground of application is that DHCJ Suffiad was wrong in upholding the finding of the Board which failed to consider all applicable grounds available under the Unified Screening Mechanism, in particular articles 2 and 22 of the Hong Kong Bill of Rights Ordinance. Articles 2 and 22 are related to BOR 2 Risk and Persecution Risk. Thus, the Applicant is in fact challenging the Board’s assessment of his risk and harm, which is a finding of fact by the Board.

14.  The role of the court in judicial review 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. 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[3].

15.  I have carefully examined the Call-1 Form. I am satisfied that DHCJ Suffiad had rigorously examined the Decision, the papers and the evidence with anxious scrutiny and was 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. The Board disbelieved the Applicant. It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality. The learned judge was satisfied that the Decision was utterly without fault and refused to grant the Applicant leave. I agree with that conclusion. The Applicant’s intended appeal has no prospect of success at all.

Prejudice to the respondent

16.  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. 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. 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

17.  In summary, there is no valid explanation for the not insignificant delay of 27 days in lodging the appeal. The Applicant could advance 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 reminded to inform the Court of his change of address, the Applicant just ignored the advice and occasioned the delay in lodging the appeal. He has to bear the consequence of his inaction. His application was obviously raised for an ulterior motive of delaying his repatriation process. This is another 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.