RE MAHABOB

HCAL 2272/2018

[2021] HKCFI 1848

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF fFIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2272 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 24 May 2021 for extension of time to appeal the order of this Court dated 26 April 2021 (the “Order”) refusing his application for leave to apply for judicial review.  He is 14 days late.

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.  By 10 May 2021, the time to appeal has expired.  The application for leave to appeal is two weeks out of time. The breach is not serious.

3.  In Jagg Sing 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 the delay and reasons for delay

4.  In the summons, the applicant gave no explanation for the 14 days’ delay in appealing the Order.  In his affirmation filed in support of the application for extension of time, he only said:

“Extention (sic) of time to appeal against the High Court decision. As my time is over and I did not get any letter timily (sic).”

5.  The court did not consider the above statement an adequate explanation for the delay.  The assertion that he did not receive the letter in time is a bare assertion not supported by any evidence, such as the post-marked envelope containing the Order.  Since the delay was not very serious, it was not fatal.  The court was prepared to overlook the delay and explore the prospect of success of the intended appeal.  However, the applicant had not given his grounds of the intended appeal.  As the applicant is acting in person, the court gave directions for filing of perfected grounds of appeal and evidence of late receipt of the Order sought to appeal against.

6.  The applicant responded by letter dated 22 June 2021.  He did not file any evidence relating to the late receipt of the Order. Thus, there is no evidence to support his reasons for the delay.  Accordingly, I find that though the delay was not very serious, there was no valid explanation for the delay.

Prospect of success of the intended appeal

7.  The entirety of the applicant’s letter is an attack on the finding of fact by the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) for the reason that the Board tested his credibility by asking him to draw the party flag of Bangladesh Nationalist Party (“BNP”).  He argued that he could not draw because he was not an artist. He loved BNP for its ideology, its founder and his activities.  He complained that the Board was not neutral and asked him some unwarranted and unrelated questions only for the purpose of rejecting his claim.

8.  It was the applicant’s case that his father was the President of BNP at Union Level and he first became involved in politics in 2007 when he became a party worker for BNP and made a Vice President at Union Level.  He liked the work of BNP and participated in a lot of its activities.  It was for the purpose of testing his credibility that the Board asked if he could draw the party flag which, given his seniority and years of standing in BNP, he was reasonably expected to be able to draw or to describe.  The flag is composed of its party logo on a red over green horizontal bicolour background. The party logo is an eight teeth wheel with a yellow rice plant below a yellow five-point star at the twelve o’clock position of the wheel. 

9.  The request of the Board could not be considered as unreasonable or irrational nor could the adverse inference it drew from the applicant’s inability to draw or describe be regarded as unreasonable or irrational or biased.  The inference it drew is a finding of fact which is exclusively within the province of the Board as the tribunal of fact to make.  What the Board requested could not constitute any procedural unfairness.  This ground cannot be a valid ground of appeal against the Board’s finding of fact and much less a ground to upset this Court’s refusal of his application for leave to apply for judicial review of the Board’s Decision dated 10 October 2018. The intended appeal has no prospect of success.

Prejudice to the respondent

10.  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.  But the prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed in the absence of a properly formulated ground of appeal with some prospect of success is obvious. It 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 of Immigration 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

11.  In summary, there is no valid explanation for the delay of a not insubstantial length of time of 14 days.  That is not necessarily fatal to an application for extension of time.  But the absence of a good ground of appeal with prospect of success is.  It is an abuse of process to challenge a decision without proper and good ground of appeal and which is bound to fail.  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.