RE SEIYED IBRAHIM MOHAMED ANVER

HCAL 13/2019

[2022] HKCFI 1857

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 13 OF 2019

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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 25 April 2022 seeking extension of time to appeal the order of Deputy High Court Judge Li (“DHCJ Li”) dated 30 December 2021 (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 8 November 2018 (the “Decision”).

2.  By way of background, the Applicant had made a torture claim, claiming that he was in love with the daughter of an army officer and that army officer threatened to kill him. He had attended a number of interviews, but had not completed any non-refoulement claim form or document of a similar nature. On 6 December 2016, he submitted a notification to the Immigration Department indicating his intention to withdraw his non-refuolement claim and to return to his home country. On the following day, the Immigration Department informed him that his case would be closed. On 10 May 2018, about a year and half later, he requested to re-open his non-refoulement claim saying that he could not go back to his home country. In accordance with the provisions under section 37ZE of the Immigration Ordinance, an immigration officer required him to provide by 23 May 2018 further information and evidence in support of his request for re-opening his claim. He did not comply. On 28 May 2018, the Director issued a Notice of Decision refusing to re-open his claim (the “Notice”). The Applicant appealed. His appeal was dismissed by the Board’s Decision dated 8 November 2018. Then, he applied for leave to apply for judicial review of that Decision (the “Leave Application). On 30 December 2021, refused his Leave Application.

3.  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. The application is three months and twelve days out of time.

4.  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 delay and explanations for the delay

5.  By 25 April 2022, the intended appeal is 102 days out of time. In the context of a 14-day period of appeal, the delay is very substantial.

6.  In his summons he said that he is not satisfied with the Order; that he still has trouble in his home country; and he needs time to obtain documents from his home country, presumably to support his claim for non-refoulement protection. In his supporting affirmation, he claimed that he did not receive the court’s letter, ie the Order, in time; that the Order was lost in his letter box because someone had taken it away.

7.  Save for the bare assertion that he had not received the Order, his summons and supporting affirmation do not provide any valid ground of appeal or adequate explanation for the 102 days’ delay. They give no clue as to why, not having received the Order, he came to know about it and to apply for extension of time to appeal. Besides, he did not state the grounds of his intended appeal which is a crucial factor for considering whether to grant leave. To enable him to present a proper case for seeking leave to appeal out of time, directions were given to him to file a statement or affirmation stating:

(a)  the date and circumstances under which he first received the Court Order or information about the outcome of his application for leave to apply for judicial review; and

(b)  in respect of each of the document he wishes to obtain:

(i) the particulars of the documents,

(ii) the particulars of the maker of the documents,

(iii) the reason why the document had not been obtained before,

(iv) how the document will assist in his application, and

(v) the date he anticipates he will obtain the documents; and

(c)  the grounds of his intended appeal.

The directions were designed to enable him to meet the requirements to qualify for extension of time as set out in Jagg Singh.

8.  In purported compliance with the directions, the Applicant replied by letter making the following nine points:

(1)  He is making his submissions in response to the directions.

(2)  He submitted a copy of a letter from the Director of Immigration dated 15 May 2018 requesting information in support of his request to re-open his non-refoulement claim and a copy of the Decision of the Board.

(3)  He was unable to submit supporting documents at the time of screening interview and appeal. He thought verbal statement adequate.

(4)  He withdrew his torture claim because his friend offered to take him to Australia (At the hearing of the Leave Application, he said it was his brother who offered to sponsor him to go to Australia.

(5)  He applied to re-open his leave application because his friend let him down.

(6)  If he returns to his home country, he will be harmed by the police officers (In his torture claim, he alleged fear was being killed by his lover’s father, an army officer).

(7)  He requests time to submit supporting documents.

(8)  It is very difficult for Tamil-speaking minority to obtain justice in his country. His shop and property were damaged. He could not obtain police assistance.

(9)  All that he said is true. There are economic and political crisis in his home country and protests outside the residence of the president and prime minister. There are no cooking gas or milk for babies. He asks for time to submit documents.

9.  His letter is long in length but devoid of substance. Points (4) and (5) explain why he withdrew his torture claim and why he later sought to re-open it after it had been allowed. The Director’s letter and the copy of the Decision of the Board are superfluous as the Court had been provided with copies.

10.  Points (6), (8) and (9) are about the difficulties facing Tamil-speaking minority in Sri Lanka and the danger he would face on his return.

11.  Points (1), (3) and (9) are about his request for time to submit documents. These points do not provide any information requested in the directions as reproduced in paragraph 6(b) above. There is no way the Court could assess the genuineness and the utility of the documents which he said he wished to obtain from home to support his claim for non-refoulement protection. The directions were given in very simple English. They are very precise and specific. His non-compliance cast serious doubt on the genuineness of his request for time, the genuineness of his intention and the true motive behind the request.

12.  Furthermore, if he was serious with his torture claim, he ought to have obtained the documents before the screening interview. Even if he did not have the documents at that time, he should have, at the latest, started arranging for their delivery to him after receiving the Decision in November 2018, rather than asking for time after waiting for about three and half years. He has been sitting on his rights. His request is not genuine. He is just dragging his feet and trying to delay his refoulement process. His letter is just an attempt to delay. It failed to explain the reason for the delay.

13.  The only explanation for the delay is his assertion in his supporting affirmation that he believed someone had taken the Court letter away and with it the Order. Directions had been given to him to assist him to perfect his case by informing the Court the date and circumstances under which he first received the Court Order or information about the outcome of his application for leave to apply for judicial review. He deliberately declined or avoided providing the information. His bare assertions in his supporting affirmation give no clue as to why, not having received the Order, he came to know about it and to apply for extension of time to appeal. The only reasonable inference that could be drawn from his evasive conduct is that his explanation is untrue. The Applicant had no explanation for the very substantial delay.

Prospect of success of the intended appeal

14.  The Applicant declined to state the grounds of his intended appeal. This makes it difficult to assess the prospect of success of his intended appeal. When assessing the prospect of success of the intended appeal, the Court must bear in mind that 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 make finding of fact. In a judicial review, the Court could only 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[2].

15.  DHCJ Li heard the Applicant’s application for leave to apply for judicial review. He had in mind the above principles: see paragraph 13 of the Form Call-1. He examined the Board’s Decision for errors of law, procedural unfairness or irrationality. The Board found the Applicant had not complied with the requirement under section 37ZE of the Immigration Ordinance. That was not disputed by the Applicant who confirmed before DHCJ Li that he had withdrawn his torture claim in 2016 and had not filed further information in support of his application to re-open his claim in 2018: see paragraph 14 of the Form Call-1. DHCJ Li found no errors of law or procedure, that the decision of the Board is rational, and that the intended appeal is not reasonably arguable: see paragraph 15.

16.  Having rigorously re-examined the Decision, the papers and the evidence with anxious scrutiny, I agree with the decision of DHCJ Li. The Applicant’s intended judicial review is wholly unarguable and has no prospect of success at all. Accordingly, leave to apply for judicial review was rightly refused. Furthermore, the Applicant has not and could not raise any criticism against the decision of DHCJ Li. There is absolutely no prospect of success in his intended appeal.

Prejudice to the respondent

17.  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. His application 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

18.  The delay is substantial. There is no valid explanation for the delay and no arguable grounds of appeal. It is a clear abuse of legal process to challenge a decision without proper and good grounds of appeal and which is bound to fail. Despite having been given a last opportunity to explain the delay in lodging the appeal and to furnish his grounds of appeal, the Applicant failed to give any reasonable explanation for the delay and arguable ground of appeal. The only reasonable inference is that his appeal is a deliberate abuse of the legal process for some secret motive. 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.