RE ISROFAH

HCAL 2316/2018

[2022] HKCFI 1324

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2316 OF 2018

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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 1 March 2022 for extension of time to appeal the order of Deputy High Court Judge Bruno Chan (“DHCJ Bruno Chan”)  dated 24 December 2021 (the “Order”)  refusing to grant him leave to apply for judicial review of the decision of the Torture Claims Appeal Board/ the Non-Refoulement Claims Petition Office (the “Board”).  On 1 March 2022, 67 days after the Order was made, the Applicant applied by summons for leave to appeal the Order out of time. 

The Law

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.  The Applicant is 53 days out of time, which is substantial in the context of a 14-day period of appeal.

3.  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

4.  By 1 March 2022, the time to appeal has expired.  The application for leave to appeal is 53 days out of time.  The breach is substantial in the context of a statutory time limit of 14 days.

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

“I did not get any letter from the High Court. So I failed to appeal. I want to appeal. I request to the High Court to extend time for me.”

In his supporting affirmation filed on the same date, he wrote:

“Extension of time to appeal, as I failed to appeal. I did not get High Court judgment timely.”

He was just repeating in essence what he asserted in the summons.

6.  As may be gathered from the summons and the affirmation, the Applicant’s explanation for the delay in appealing is that when he received the Order, the 14 days’ time to appeal had expired.  He advanced no grounds of appeal.

7.  The Court noted that the Applicant used an address which is different from that used in his Notice of Application for Leave to Apply for Judicial Review (Form 86).  To ensure that nothing went amiss as result of his change of address, on 3 March 2022, this Court gave the Applicant directions by letter requiring him to file an affirmation or statement within 14 days of the directions stating the following:

(a)  the circumstances the applicant came to know about the decision/order and exhibit supporting documentary evidence, if any;

(b)  explanations for the late application and exhibit supporting documentary evidence, if any; and

(c)  the grounds of the intended appeal.

He was also advised that the application for extension of time will be determined on paper after 14 days after the date of the directions, regardless whether the above directions have been complied with.  

8.  On 19 April 2022, the Applicant deposited a letter with the Receipt and Dispatch Section of the Judiciary in purported compliance with the directions.  In the letter, he wrote:

“On 3 March 2022 the High Court asked me to submit some documents. I have no documents to submit.

Please take action on my previous paper.”

He only said he had no documents to submit.  He did not inform the Court of the circumstances he came to know about the decision/order; gave no explanation for the late application and gave no grounds of the intended appeal.

9.  The directions were designed to ascertain the length of the delay and to enable the Applicant to explain the reason for the late receipt of the Order or the delay in appealing, which he has hitherto failed to give.  For example, how and when he came to know about the Order; and the credibility of his complaint of non-receipt of the Order.  As he did not provide those information, there are simply no explanations for the delay in appealing.  It is impossible to assess the reasons or explanations for the delay.

Prospect of success of the intended appeal

10.  The Applicant did not advance any ground of appeal in his summons or affirmation.  Despite the Court’s specific request for his grounds of appeal, he did not provide them.  Without even knowing what his grounds of appeal are, it is impossible to assess the prospect of success of the intended appeal.

11.  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.  In a judicial review, 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[2].  In the absence of any specific grounds challenging the Court’s decision in refusing leave to apply for judicial review, in an application to appeal that decision out of time, the court can only focus on the above vitiating elements in the decision.

12.  I have carefully examined the Call-1 Form.  I am satisfied that DHCJ Bruno Chan 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.  He has satisfied himself that the Board’s decision has not been vitiated by error of law, procedural unfairness and irrationality.  I agree with that conclusion.  Without even knowing his grounds of appeal, it is impossible to assess the prospect of success of the intended appeal.  On the material now available, the Applicant’s intended appeal has no prospect of success at all.

Prejudice to the respondent

13.  The prejudice to the proposed respondent and to public administration is obvious, if a challenge is allowed to proceed in the absence of a properly formulated ground of appeal with some prospect of success.  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

14.  The delay is very substantial.  The Applicant gave no valid explanation for the 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 explain the delay in lodging the appeal and to furnish his grounds of appeal, the Applicant declined 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.