SHOMAN ABU ZAFOR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 777/2021

[2024] HKCFI 3420

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 777 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 20 November 2024 seeking extension of time to appeal the order of this Court dated 29 October 2024 (the “Order”) refusing his application for leave to apply for judicial review (the “leave application”) of the decision (the “Decision”) of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”).

Legal principles applicable to application for extension of time to appeal

2.  Under Order 53, rule 3(4) of the Rules of the High Court, an appeal against any decision of the court refusing an application for leave to apply for judicial review shall be made within fourteen days after the date of the decision. Thus, by 20 November 2024 when the summons was filed, this application was eight days out of time.

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 the delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if extension of time was granted. Usually, prospect of success of the intended appeal is the single factor which carries most weight in deciding whether to grant extension of time. The fourth factor needs to be considered only if the sum total of the first three are in favour of granting extension of time.

Discussion

4.  The application is eight days out of time, which is not very substantial in the context of a 14-day period of appeal. In his supporting affirmation, he claimed he is detained in Tai Tam Gap Correctional Institution and he received the Order on 6 November 2024. Accepting his assertion and allowing for the usual inconvenience of being held in custody, his explanation is reasonable. However, to obtain extension of time to appeal, he had to demonstrate his intended appeal has prospect of success. In his five-page supporting statement, he advanced a number of grounds. These are dealt with below.

5.  First, he challenged this Court’s finding that “it mentioned the incredible and aspects of account were exaggerated or inconsistent information he gave defied logic, errors of law procedural unfairness and irrationality. Also mentioning the Applicant did not advance an[y] grounds for judicial review.” On this latter ground, he explained that back in 2021, “due to lack of legal information [he] can’t provide grounds for judicial review.”

6.  This Court had not made any such finding about the Applicant’s non-refoulement claims. Those were the findings of the Board which this Court could find no reason to interfere on the basis of error of law, procedural unfairness or irrationality.

7.  Second, he explained the reasons for his failure to provide grounds of review in his Form 86. His failure to provide grounds is not a reason for refusing his leave application. It was mentioned in the Form CALL-1 as a statement of fact and a starting point for the Court’s exploration of his grounds of application. The Applicant attended the oral hearing. He was explained the legal principle relating to judicial review, the meaning of error of law, procedural unfairness and irrationality. He was given examples of such vitiating elements. He confirmed he had no complaint about error of law and irrationality and advanced arguments about procedural unfairness. His argument is summarized in paragraph 20 of the Form CALL-1. He had the opportunity to advance his leave application and make submissions. However, for reasons as explained in that paragraph, this Court found his submission could not be a valid ground of application. He has advanced no argument to challenge this Court’s finding.

8.  The ground he now advanced is just a reiteration of the facts of his claim and the present situation in his home country which makes it dangerous for him to return. It is in effect a challenge of the Board’s finding of fact which is not permissible in a judicial review.

Conclusion

9.  Even though the Court accepted his explanation for the delay with sympathetic understanding, the Applicant has advanced no arguable grounds with prospect of success. According, extension of time to appeal is refused.