RE QASIMALI

HCAL 1617/2021

[2022] HKCFI 2680

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1617 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 14 June 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 18 March 2022 (the “Order”) refusing him leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 4 November 2021 (the “Decision”).

2.  In his Summons and supporting affirmation, the Applicant claimed that he did not receive the Order within a reasonable period or within 14 days to allow him time to appeal within time. Eighty-eight days had lapsed since the date of the Order. The Court noted that the address given by him in his Summons is different from the address to which the Order was sent. In fact, when he made the application for judicial review he was detained in Castle Peak Bay Immigration Centre. He did not inform the Court of his address when he was discharged. The Order issued to him care of that institution was returned. The Order was then re-sent to his updated address at Yau Oi Estate obtained from the Immigration Department. Obviously, he did not receive the Order because he had moved from the Yau Oi Estate address to the address in the Summons.

3.  To assist him in presenting a proper case, this Court gave him directions by letter dated 7 July 2022 to file a statement within 14 days of the letter stating:

(a) all his residential addresses since 10 November 2021 when he applied for leave to apply for judicial review;

(b) the date of change of address, exhibiting supporting documentary evidence, if any, such as tenancy agreement, correspondence with government departments, envelopes showing the changed address and date of posting;

(c) the date of reporting the change to the Immigration Department, exhibiting supporting documentary evidence, if any;

(d) the date of reporting the change to the High Court, exhibiting supporting documentary evidence, if any; and

(e) the grounds of his intended appeal.

He was also informed that his application will be determined on paper 21 days from the date of the directions regardless whether he has complied with the above directions.

4.  In response, the Applicant sent in a handwritten piece of paper titled “Affidavit” in Urdu. The document purports to be a statement from his father-in-law alleging that the Applicant had a land dispute with his relatives and his life is in danger. It does not answer any of the points raised in the directions. It does not explain the delay. It does not provide information about his changes in address. It does not disclose his grounds of appeal. It merely repeated his case before the Board.

The Law

5.  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 of the intended appeal;

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

Length of delay and reasons for the delay

6.  Any person dissatisfied with the order of the court may appeal that order within 14 days after it was made. By 14 June 2022 when the Summons was filed, 88 days had lapsed since the date of the Order. The application is 74 days out of time. It was a substantial delay in the context of a fourteen-day period for appeal. Despite specific directions were given requiring him to give particulars of his explanation and supporting evidence, the Applicant declined to do so. Obviously, the reason for the delay is his failure to inform the Court of his change of address. He has failed twice. In Re Karamjit Singh[2] and Re Hasmi Rizwan Imran[3], the Court of Appeal held that it is the applicant’s duty to inform the court of his change in correspondence address and he has to bear the consequence of his failure to comply with that obligation. The only reasonable inference is that he has no explanation for the delay and no grounds of appeal.

Prospect of the intended appeal

7.  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 Applicant declined providing his grounds of intended appeal. The only way the Court could assess the prospect of success of his 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. 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 Decision and 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

8.  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. To allow the 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 may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

9.  The Applicant has no explanation for the delay and has no arguable grounds of appeal. His 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, his application for extension of time to appeal is refused.