RE MIZAN MIA

HCAL 464/2017

[2022] HKCFI 1047

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 464 OF 2017

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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 7 January 2022 (the “Summons”) for extension of time to appeal the order of Deputy High Court Judge Woodcock (“DHCJ Woodcock”) dated 4 December 2017 (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 21 July 2017 (the “Decision”).

The background

2.  On 28 July 2017, the Applicant applied by Form 86 for leave to apply for judicial review of the Decision of the Board. His application was set down for hearing before DHCJ Woodcock on 12 October 2017. The notice of hearing was sent to him at his address in Yan Oi House, Tuen Mun as stated by him on the Form 86 and his supporting affirmation. The Applicant did not appear on the date of hearing. On 4 December 2017, DHCJ Woodcock issued the Order and Call-1 Form refusing his application for leave to apply for judicial review. The Applicant now seeks leave to appeal the above Order out of time.

The Law

3.  In Jagg Singh and 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 faors, 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 the intended appeal;

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

The length of delay and reasons for the delay

4.  By 7 January 2022 when the Summons was filed, more than four years and five months had lapsed since the date of the Order. The application is almost four years and five months out of time. The delay is grossly inordinate in the context of a fourteen-day appeal period. The Applicant did not state his grounds of appeal or explain the reasons for his late application in the Summons. In his supporting affirmation, he said:

“Leave be granted to me to file summons against the decision made by High Court Judge Woodcock as I never received any hearing date notice informing me that a hearing has been scheduled to hear my application on the 12 October 2017. Neither have I ever received Form Call-1.

I have requested help from people who can make use of internet to check whether there’s any update on my case. I was informed that review is still under process because the decision is not available in the Judiciary website. It is only since I have been detained by the Immigration, I have been give to understand that my application for review was dismissed on the 4 December 2017. Given the circumstances, I humbly request the court to grant me leave.”

The sum total of his affirmation is that the Applicant never received the notice of hearing, the Call-1 Form and the Order; he had someone helping him to check on the Judiciary’s website for the result of his application but was not aware of any decision having been made in respect of his application; and it was only until he was detained by the Immigration Department that he was advised of the Order.

5.  The explanation given in the affirmation are mere assertions which are not supported by any corroborating or independent evidence. It does not explain why he did not receive the notice of hearing or the Order. An important fact which underlies his assertions is whether the address he provided in his Form 86 and supporting affirmation is effective. To assist him in presenting a proper case, this Court gave him directions on 7 February 2022 to file a statement stating:

(a)  all his residential addresses since 28 July 2017 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)  grounds of the proposed judicial review.

He was also advised that his application for extension of time will be determined on paper after 21 days from the date of the directions, regardless whether the above directions have been complied with.

6.  The directions were sent to him by post within a month to his address in Castle Peak Bay Immigration Centre as stated in his Summons and supporting affirmation. It was returned and marked “no such person”, suggesting that he had been discharged during that one month. But he never informed the Court of his change of address. On 23 February 2022, the Applicant delivered his statement providing the following information:

(a)  He had no fixed residential address since 2017.

(b)  He has no supporting documents to submit relating to his changes in address.

(c)  He jumped bail and never reported to the Immigration Department since 2017.

(d)  He has no supporting documents to submit relating to his informing the High Court of his change of address.

(e)  His ground of the proposed appeal is that he never received the Order and Call-1 Form. He repeated what he said in his supporting affirmation.

7.  The above answers amounted to an admission that since filing his Form 86 in July 2017, he had no fixed residential address. He jumped bail and never reported his changes in address to the Immigration Department. He never informed the Court of his change of address. That explains, assuming his assertion that he never received the Order and the Call-1 Form is true, the underlying reason why he did not. He made a conscious decision to jump bail, moved around with no fixed abode and not to let the authority know his whereabouts. He did not inform the Court of his change of residential address or correspondence address. That is why he did not receive the Order and Call-1 Form.

8.  Likewise, he did not inform this Court of his change of address since filing his Summons. It was only because of the Court’s initiative that it is able to maintain contact with him. His omission casts serious doubts about his motive in not keeping the Court informed of his change of address.

9.  In Karamjit Singh[2], the Court of Appeal said:

“As we have said before, it is common sense that if a litigant or a claimant does not notify the authority (be it the Immigration Department, the board, or the court) in his change of address, there would be delay in communication. If he does not do so, he should arrange for timely transmission of mail from his old address to his new address. It is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant, see: Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346. That said, however, we note that the delay in this case was very short, being only some 6 days. In such situations, the board should generally have regard to the merits of the case as disclosed by the available material, rather than simply dismissing the application for lateness.”

Thus, it is the Applicant’s duty to report his change of address to the Court. If he did not, he has to bear the consequence of his neglect. Hence, there is no valid explanation for the delay.

10.  Furthermore, his explanation is also incredible for another reason. If he had arranged for someone to check on the Judiciary’s website, that person could not have failed for more than four years and five months to find out that a decision had been against the Applicant, whether by reference to his name as applicant or to his application number. The Applicant is not credible. This Court is not even sure if he had actually never received the Order and Call-1 Form. But whatever is the truth, he had no credible and reasonable explanation for the non-receipt of the Order and Call-1 Form or for the delay in making the application.

Prospect of the intended appeal

11.  The Applicant’s sole ground of appeal or judicial review is that he had never received the Order. If his explanation is not accepted, non-receipt is not a ground for appeal or judicial review. He advanced no other valid grounds for appeal or judicial review.

12.  The function 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 an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[3]. Thus, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality. 

13.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that DHCJ Woodcock and 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 correctly identified the issues. DHCJ Woodcock and the Board observed a very high standard of fairness. It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds.   These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality. DHCJ Woodcock could detect no error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. This Court agrees with DHCJ Woodcock’s decision. Her decision is utterly without fault. 

14.  For the above reasons, the Applicant has no arguable grounds of appeal or judicial review. His proposed judicial review has no realistic prospect of success. For this reason alone, it would be futile to grant leave to appeal out of time.

Prejudice to the respondent

15.  As for prejudice to the proposed respondent, it is unlikely that this issue would be explored in an ex parte application for extension of time. 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

16.  The Applicant has no arguable grounds of appeal or judicial review and has no valid explanation for the very substantial delay of about four years and five months. For these reasons alone, his application for leave to appeal out of time must be dismissed. Furthermore, it would be a futile exercise of the Court’s discretion to grant extension of time to enable an applicant to appeal or to apply for a judicial review which is bound to fail. To allow such an un-meritorious challenge to proceed would be gravely prejudicial to the intended respondent and the administration. Accordingly, the application for extension of time to appeal the Order of DHCJ Woodcock is refused.