RE HOSSAIN AEJAZ

HCAL 1186/2020

[2023] HKCFI 111

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1186 OF 2020

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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 17 October 2022 (the “Summons”) for extension of time of 45 days to apply for judicial review.

2.  By way of background, the Applicant filed a Form 86 on 15 June 2020 to apply for leave to apply for judicial review of the Decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dismissing his appeal against the decision of the Director of Immigration refusing his non-refoulement claim. That application was dismissed by this Court on 26 August 2022. The Form CALL-1 and order dismissing his application (the “Order”) were served on him in Tai Tam Gap Correctional Institution where he was and still is detained. By a letter dated 31 August 2022, he applied to this Court for extension of time of 45 days to apply for judicial review on the grounds that he had been admitted to hospital for three days for mal-nutrition and he need time to raise funds to engage a lawyer. That letter was received by the Registry on 9 September 2022, which happened to be my last day of sitting. It was never referred to me for direction and presumably left unattended. On 27 October 2022, which was 48 days after receipt of his letter, the Registry received the Summons, a supporting affirmation, a new Form 86 dated 17 October 2022 (the “second Form 86”), a bundle of documents and a covering letter requesting waiver of the filing fee presumably for filing the Form 86. The matter was referred to Deputy High Court Judge Bruno Chan who then directed it be transferred to this Court for disposal.

3.  The Applicant did not identify the order or decision in respect of which he sought to apply for judicial review or the maker of that order or decision. Having regard to the case number which he quoted and the history of the proceedings thereunder, on the face, his intention was to apply for judicial review of the decision of this Court dated 26 August 2022 refusing his application to apply for leave to apply for judicial review of the Decision of the Board dated 2 June 2020. However, decisions of the Court of First Instance are not amenable to judicial review because there is in place statutory procedure of appeal against its decisions to the Court of Appeal. Thus, this application may be dismissed forthwith. On the other hand, though the Applicant specifically said he wanted to apply for judicial review, against the above background it is clear that he meant to appeal the Order of this Court. The high standard of fairness in non-refoulement proceedings would require this Court to consider his application as if it were one for extension of time to appeal the Order. If he could demonstrate an arguable appeal, the Court shall amend his application accordingly and grant leave.

4.  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

5.  By 27 October 2022 when the Summons was received by the Registry, two months and one day had lapsed since the date of the Order. The application is more than one and half months out of time and more than the 45 days the Applicant had asked for. His primary reasons for the delay as stated in his letter dated 31 August 2022 are that he suffered mal-nutrition and was hospitalized for three days; and he need time to recover, to raise funds to engage a lawyer and to arrange his legal representation. In the Form 86 attached to his Summons, the Applicant alleged that he had to fast every day and that from 26 July 2022 till 20 September 2022, he was “not given the food, which [he] consume after sunset”, he became weak and was admitted to hospital. He claimed to have lost 23 kilogramme in weight. In his bundle of documents attached to the Summons, he complained about ill-treatment by the prison officers and assault by inmates and others etc, which presumably are his secondary reasons for the delay. This Court does not find it necessary to determine the truth or otherwise of those allegations. Even if they were true, they are not good reasons, at least not good enough to justify the delay in question. However, as the Court had not responded to his letter dated 31 August 2022 requesting for extension of time, this Court is prepared to condone his delay.

PROSPECT OF SUCCESS OF THE INTENDED APPEAL

6.  The Applicant’s grounds of judicial review or appeal as stated in his supporting affirmation and the second Form 86 are: (1) that if he returns to India, he will be killed by his business partners who are all working and holding high positions in Bharatiya Janata Party (“BJP”) which is the ruling political party in India; and (2) there are many errors in the Decision of the Board.

7.  His first ground is in fact the gist of his case before the Director and the Board which has been summarized in paragraphs 6 to 12 of the Form CALL-1. His second ground is a bare assertion, over-sweeping and devoid of particulars. Both grounds are challenges against the finding of fact by the Board. His case had been carefully considered and rejected by the Board. The Board’s finding is summarized in paragraphs 13 to 17 of the Form CALL-1.

8.  At the hearing before this Court, the Board’s Decision and the legal principles applicable to judicial reviews was explained to him through the interpreter. He was explained how he could challenge the Decision on the basis of error of law, procedural unfairness and irrationality: see paragraphs 19 of the Form CALL-1. He was unable to advance any specific grounds of application other than his disagreement with the Board’s finding of fact. He raised certain disputes about the Board’s finding. These are challenges against the finding of fact by the Board. Nevertheless. the Court had considered those disputes, but was unable to find any errors of law, procedural unfairness or irrationality in the Decision: see paragraphs 20 to 23 of the Form CALL-1. His grounds of appeal or judicial review is just a repetition of his factual disputes before the Board which had been rejected by the Board. They contain nothing new and nothing of substance. He has no arguable grounds of appeal.

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 is obvious, if his application is allowed. 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. 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. 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 his application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

CONCLUSION

11.  For the above reasons, the application for extension of time to appeal is refused.