MUHAMMAD ARIF AMIN MUGHAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2937/2018

[2023] HKCFI 433

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2937 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 filed on 17 October 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 5 September 2022 (the “Order”) refusing his application for leave to apply for judicial review (the “Leave Application”) of the decisions of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 10 December 2013 and 24 September 2018.

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 the judge’s order to the Court of Appeal within 14 days after such order was made. By 17 October 2022 when the Summons was filed, six weeks had lapsed since the date of the Order. The application is twenty-eight days out of time, which is not insubstantial in the context of a fourteen-day appeal period.

THE LAW

3.  In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office[1] and Director of Immigration and William Lam[2], 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; and

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

LENGTH OF DELAY AND REASONS FOR THE DELAY

4.  The Court noted that the Order and Form CALL-1 were sent to the Applicant’s last known address in 45 Battery Street (the “first address”), whereas his address as stated in his supporting affirmation is in 71A Battery Street (the “second address”). If in fact he had not received the Order, it was most likely because he had not informed the Court of his change of address. In Karamjit Singh[3], 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.”

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.

5.  Instead of coming to the conclusion that he has no reasonable explanation for the not insubstantial delay, out of abundance of caution and with a view to explore the existence of a possible explanation for the delay, this Court gave him specific directions to file a statement with supporting documentary evidence (if any) stating:

(a)  the date and circumstances when he was first informed that his Leave Application had been refused;

(b)  all his correspondence address since 16 March 2020 which was the date when he last used the first address in his correspondence with the Court;

(c)  his change of address thereafter;

(d)  the date of his informing the Immigration Department of his change of address;

(e)  the date of his informing the Court of his change of address; and

(f)  his grounds of the proposed appeal.

6.  In relation to (a), the Applicant replied that he was first informed of the outcome of his Leave Application on 5 September 2022 and exhibited a copy of the covering letter under which the Order and Form CALL-1 were sent to him. If that was the case, he had received the Order within time. That would be inconsistent with his assertion in his supporting affirmation and with his other answers in the statement. The Court generously assumes in his favour that his reply was the result of a misunderstanding, though the following analysis suggests his conduct is more consistent with an attempt to keep the Court away from the truth.

7.  In relation to (b), he produced six pages of documents which appear to be copies of two tenancy agreements. The first two pages appear to relate to a tenancy ending on 14 March 2023 of a premises the address of which was covered up except for the words “Room C” (the “covered-up address”). It should be noted that “Room C” actually forms part of the second address. The other four pages appear to relate to a tenancy of the premises at 45 Battery Street, ie the first address, from 20 April 2019 to 30 April 2020.

8.  In relation to (c), he confirmed that his current address is at the second address and exhibited the letter of this Court giving him the directions mentioned in paragraph 4 above.

9.  In relation to (d), he said he could not recall the date when he reported his change of address to the Immigration Department.

10.  In relation to (e), he said that he had reported the change of address to the High Court on 17 October 2022 and exhibited his Summons and supporting affirmation as evidence. It should be noted that the address referred to in (c) and (e) are the same, ie the second address. But, according to the Court’s record, he had never informed the Court of his change from the first address to the second address. He only used the second address when he filed his Summons and that address was then used by the Court in correspondence with him. Piecing his answers together, the truth is amply clear. The covered-up address is actually the second address. The Applicant had moved from the first address to the second address sometime after 16 March 2020 without informing the Court. Hence, the Order and the Form CALL-1 were sent to the first address. He had not complied with the Court’s direction to state the circumstances when he was first informed of the outcome of his Leave Application. The Court has no direct evidence how he came to know about the Order. Presumably, he learned about it from an immigration officer on his regular reporting of his recognizance to the Immigration Department. He only had himself to blame for not having received the Order in time to enable him to file his appeal. He does not have any reasonable explanation for the delay of a not insubstantial period of 28 days.

PROSPECT OF SUCCESS OF THE INTENDED APPEAL

11.  The Applicant filed a four-page statement titled “Grounds of Application for leave to apply the Judicial Review” advancing nine grounds. His first eight grounds are directed at paragraphs 20 to 27 of the Form CALL-1 in which this Court summarized the finding of the Board. He disagreed with the Board’s finding that there are serious problems regarding credibility in his CAT claim and that his evidence is lacking in specifics, confused, inconsistent and is far-fetched. He reiterated that he told the truth but the Board was unreasonable in rejecting his evidence. All these are attacks on the Board’s finding of fact. He had never advanced these grounds in his Leave Application. As stated in paragraph 29 of the Form CALL-1, the only ground he advanced in his affirmation in support of his Leave Application is that he was not satisfied with the decision of the Board and the Director because he did not want to back to Pakistan. He was basically disputing the Board’s finding of fact which is not permissible: see Nupur Mst v Director of Immigration[4].

12.  His ninth ground is directed at paragraph 29 of the Form CALL-1 in which this Court discussed application of the legal principle in Nupur Mst v Director of Immigration to his Leave Application. This Court concluded, following the analysis in the preceding paragraph, that in the absence of a proper ground of application, the Applicant’s Leave Application had to be considered by this Court undergoing a rigorous examination of the Board’s Decision with anxious scrutiny for errors of law, procedural irregularity and irrationality in the Decision. For reasons as explained in paragraphs 29 and 30 of the Form CALL-1, this Court could not find any.

13.  By his intended appeal, the Applicant is in effect seeking to challenge this Court’s finding that the Board’s Decision has not been tainted by any of the above vitiating factors which is the sole ground for which this Court may review the Decision of the Board; but he has not provided any basis for challenging this Court’s decision. Thus, his intended appeal has no prospect of success.

PREJUDICE TO THE RESPONDENT

14.  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 which has no prospect of success 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

15.  The Applicant has no valid explanation for the not insubstantial delay. 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.