RE SHAHANAJ BEGUM MOST

HCAL 1508/2021

[2022] HKCFI 2058

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1508 OF 2021

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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 25 April 2022 (the “Summons”) for extension of time to appeal the order of Deputy High Court Judge Li (“DHCJ Li”) dated 5 January 2022 (the “Order”) refusing her 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 11 January 2021.

The Law

2.  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 in the intended appeal;

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

Length of delay and reasons for the delay

3.  By 25 April 2022 when the Summons was filed, 110 days had lapsed since the date of the Order. The application is 96 days out of time, which is very substantial in the context of a fourteen-day appeal period. Her explanation for the delay as stated in her supporting affirmation is that she “did not get High court judgment timely” and she exhibited a copy of the Order and Form Call-1. Thus, she received the Order but not within 14 days. Her supporting affirmation does not explain why it took her 96 days to appeal.

4.  To assist her in presenting a proper case, this Court gave her directions by letter dated 16 May 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 her notice; and

(b)  the grounds of her intended appeal.

She was also informed that her application will be determined on paper 21 days from the date of the directions without a hearing whether she has complied with the above directions or not. She did not respond. The letter was posted to her at her address given by her less than a month ago in her Summons. It has not been returned through the post. There was nothing to suggest the Applicant had moved or has not received the letter. She is deemed to have declined providing an explanation for her late appeal and her grounds of the intended appeal.

Prospect of the intended appeal

5.  Despite directions had been given for the Applicant to state her grounds of appeal, she declined providing her grounds of the intended appeal. 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 only way the Court could assess the prospect of success of her 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. The decision to refuse her application for leave to apply for judicial review was made after rigorous examination of the Decision and all the papers with anxious scrutiny. 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 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, particularly one without any prospect of success. To allow such a 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 to proceed may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

7.  The Applicant has no valid explanation for the very substantial delay and has no arguable grounds of appeal. Her 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, the application for extension of time to appeal is refused.