RE AKTER SHORNALEE

HCAL 746/2018

[2021] HKCFI 2209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 746 OF 2018

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DECISION

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Introduction

1.  This is the applicant’s application by summons dated 26 February 2021 for extension of time to appeal the order of Deputy High Court Judge C P Pang dated 17 July 2020 (the “Order”) refusing his application for leave to apply for judicial review. 

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 26 February 2021, the time to appeal has expired.  The application for leave to appeal is six months and twenty-six 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 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 his affirmation filed on 26 February 2021 in support of his application for extension of time, the applicant did not give any explanation for the delay.  He simply said that he sought extension of time because he “cross the time limit”, as if extension of time is as of right. 

5.  On 16 June 2021, I gave directions to the applicant to file an affirmation setting out his explanation for the late application and his proposed grounds of appeal within 14 days. The instructions are as follows:

“(1) The applicant to file an affirmation with court setting out:

(a)  the circumstances he came to know about the Order of the Court and exhibit supporting documentary evidence, if any;

(b)  explanation for the late application and exhibit supporting documentary evidence, if any, such as envelope with post mark containing the Order of the Court;

(c)  if the applicant has changed his residential address since the date of application for leave to apply for judicial review,

(i)  the date of change and new address, with supporting documentary evidence, such as tenancy agreement, rental receipts, letters from government department or other bodies, if any;

(ii)  the date of reporting the change to Immigration Department; and

(iii)  the date of informing the change to the High Court;

(d) the grounds of appeal; and

(2)     The application for extension of time will be determined on paper after 14 days from the date hereof, regardless whether the directions at paragraph (1) have been complied with.”

6.  The applicant did not file any affirmation. Instead, he sent a letter dated 22 June 2021 to the court.  In the letter, he repeated his fear.  He said he “did not get my decision letter (ie the Order and Form Call-1) timely and that the immigration officer told him to go to the High Court and appeal, but the time was over”.  He said he did not know why he did not get the letter.  He suggested that the sweeper might have thrown the letter away as there is only one letter box and there are many incoming mails every day.  His ground of application is that he could not return to his home country as his problem there has not been solved and his life will be at risk, if refouled.

7.  Simply put, the applicant’s explanation is that he did not receive the Order because the sweeper might have thrown it away for there were too many mails in the letter box.  He was given clear and detailed instructions what to include in the affirmation.  But the information he gave is far from complete or satisfactory; and I shall show is incorrect and misleading. 

8.  In respect of paragraph 1(a) of the directions, I assume for his benefit that his case is that he did not receive the Order and did not know about the making of the Order until he was informed about the Order by the immigration officer in his routine reporting.

9.  Under paragraph 1(c) of the directions, if the reason for late receipt or non-delivery of the Order was due to change of address, the applicant is required to produce evidence of change of address, date of reporting the change to the Immigration Department and the date of informing the change to the High Court.  The Order and Form Call-1 were sent to the applicant’s address at Pei Ho Street in Sham Shui Po, which according to the record of the Court is the last known address of the applicant.  However, the address of the applicant as shown on the summons is in Kam Muk Road in Yuen Long.  Obviously, the real reason why he did not receive the Order is because he had changed his address without notifying the High Court; and not that the sweeper had thrown away the mails from the letter box. 

10.  The applicant was required to comply with paragraph 1(c) of the directions to provide the information and supporting documentary evidence about the change of address, the date of change, the date of notification to the Immigration Department and the High Court, if available.  None of the information or supporting documentary evidence required was produced.  The applicant simply ignored the direction, as if he had not changed his address, which is the real reason for non-receipt of the Order.  He must know his change of address is the reason for non-receipt of the Order. Yet, he evaded the directions, concealed that true reason and made up a suggestion that the sweeper cleared the mail box and threw away the mails to mislead the Court.  He gave a false reason.  In Re Karamjit Singh[2], the Court of Appeal “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) 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 ...”.  The applicant only has himself to blame for not receiving the Order which prevented him from lodging an appeal within time. There are no valid reasons for the delay.

11.  The applicant was given clear directions under paragraph (1)(d) of the directions to state his grounds of appeal.  Not only did he not file an affirmation setting out his grounds, his letter which was apparently lodged for the purpose of compliance with the directions did not contain any arguable grounds of appeal.  He only repeated that he could not return to his home country because his problem there has not been solved and his life is at risk.  These are the only grounds for his leave application.  In effect, the applicant seeks to challenge the finding of fact by the Board.  Those arguments had been presented before the Director and the Board and were rejected at both levels.  Those arguments were then repeated before Deputy High Court Judge Pang when considering his application for leave to apply for judicial review and were, in my view, rightly rejected by the learned judge in paragraphs 8 to 16 of the Form Call- 1.

12.  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.  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[3].  The grounds now advanced by the applicant are challenges to the finding of fact by the Board.  I adopt the reasons stated by Deputy High Court Judge Pang in refusing his application for leave.  These grounds do not constitute any valid ground for applying for judicial review, still less a ground to challenge a decision refusing such leave.  

13.  For the reasons as stated in the above paragraph, I can only come to the conclusion that there are no arguable grounds of appeal.  As such, the intended appeal has no prospect of success.

Prejudice to the respondent

14.  As for prejudice to the proposed respondent, usually this issue would not 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 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

15.  In summary, there is no valid explanation for a short delay of albeit two days.  That is not fatal to an application for extension of time.  But the absence of an arguable 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.