RE MOHAMMED FAIZ

HCAL 539/2019

[2022] HKCFI 1843

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 539 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 13 April 2022 seeking extension of time to appeal my order dated 19 January 2022 (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 13 February 2019 (the “Decision”).

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. The application is two months and eleven 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 delay and explanations for the delay

4.  By 13 April 2022, the application is two months and eleven days out of time. In the context of a 14-day period of appeal, the delay is very substantial.

5.  His application is framed in the following manner in the summons:

“The application for leave to apply for Judicial review be refused. As a Layman I would like to appeal on Your Honour’s that I am an asylum seekers in Hong Kong and I don’t have money now to pay fee to the Court for my (illegible) appeal. So It’s my kindly request to the Court to please give extension of time to me to appeal again and allow me to stay in Hong Kong.”

In his supporting affirmation, he averred:

“Respectfully, I write this affirmation to know the Court that I would like to appeal again On Your Honour’s Court, because my Leave to apply for Judicial review be refused. So It’s my kindly request to the Court to please give extension of time to appeal again.”

6.  His summons and supporting affirmation are merely a statement of his wish to be given extension of time to appeal my Order and a statement of fact that he has no money to pay the court fee for filing an appeal. In fact, no fee had to be paid to file an appeal. The Applicant ought to know that when he filed the summons. His lack of funds is not a reason for the delay. He has given no explanation for the delay. To enable him to present a proper case for seeking leave to appeal out of time, directions were given to him by letter dated 11 May 2022 to file a statement or affirmation within 14 days of the letter stating:

(a)  the date when he received the Order;

(b)  explanation for the delay in filing his appeal; and

(c)  grounds of the proposed appeal.

7.  In purported compliance with the directions, the Applicant filed an affirmation annexing his ground of appeal. In the affirmation, he said:

“Respectfully, I write this affirmation to know the Court that I received letter from the Court on 10^th of May 2022. So that’s the reason I appeal late and I want an extension of time from the Court. As an asylum seekers also I am arranging money to appeal again.”

8.  It should be noted that he used the word “letter” and not “Order” as stated in the directions. He said he “received the letter from the Court on 10 May 2022” and “so that’s the reason I appeal late”. This Court had not sent him any letter which he could possibly have received on 10 May 2022. He could not have been referring to the Court’s direction letter dated 11 May 2022 which he could not have received on 10 May 2022 before it was sent. It is nonsensical for him to think that this Court was asking him to inform the Court the date he received its letter. If in fact he was referring to that letter and made a typo, he was not answering the Court’s enquiry.

9.  However, the tenor of his statement suggests he was referring to the receipt of the Order which he wished to appeal against because he was relying on its late receipt to explain his late appeal. If that was what he intended to say, it was blatantly false because he must have received that Order well before he made this application by his summons on 13 April 2022.

10.  The directions were given in very simple English which he could not have misunderstood, having regard to the standard of English (although not perfect) he wrote in his summons and affirmations. He was purporting to answer the Court’s enquiry as raised in the directions and unwittingly made a misrepresentation which is too obvious to escape the Court’s scrutiny. The delay of two months and eleven days was inordinate in the context of an appeal period of 14 days and he has no valid explanation for the delay.

Prospect of success of the intended appeal

11.  The Applicant set out four grounds of his intended appeal. Before considering those grounds, it must be borne 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 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 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].

12.  In his application for leave to apply for judicial review, the Applicant had not advanced any specific grounds for his application. Hence, this Court could only examine the Board’s Decision for errors of law, procedural unfairness or irrationality. Having rigorously re-examined the Decision, the papers and the evidence with anxious scrutiny, I was satisfied that 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; correctly identified the issues and observed a very high standard of fairness. As stated in paragraph 21 of the Form Call-1, the Board found the Applicant not a witness of truth and did not accept his evidence, except that as regards his personal background. Hence, the Board was not satisfied that the Applicant had discharged the burden of proving the factual basis required to support his claim of fear from harm. It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds. The reasons for the Board’s finding are summarized in paragraphs 14 to 18 of the Form Call-1. This Court could detect no errors of law in the Decision or procedural unfairness in the non-refoulement process or irrationality in the Board’s Decision. The Applicant’s application for judicial review was in substance a challenge of the Board’s finding of fact. His intended judicial review is wholly unarguable and has no prospect of success at all. Accordingly, leave to apply for judicial review was refused.

13.  Against the above background, I turn to consider his grounds of appeal. In his first ground, the Applicant alleged that this Court had failed to consider all applicable grounds of non-refoulement and in particular BOR 2 Risk ground. It was for the Board, and not this Court, to consider his grounds, make finding of fact and assess his entitlement. All these grounds had been considered by the Board. The reasons for the Board’s finding are summarized in paragraphs 14 to 18 of the Form Call-1 and the reasons for this Court’s analysis and conclusion are summarized in paragraph 12 above. These will not be repeated here. This Court had rigorously examined the Decision, the papers and the evidence with anxious scrutiny and could find no errors of law, procedural unfairness or irrationality in the Decision. The Applicant has not pleaded any such vitiating elements under this ground. This ground is wholly unarguable.

14.  In his second ground, the Applicant alleged that this Court erred in accepting the Board’s finding that “the only fact established is that the applicant is an Indian male, he faces no risk of any harm at all” to conclude that the persecution risk failed. This is a finding of fact by the Board based on its assessment of the credibility of the Applicant. For same reasons as stated in paragraph 13 above, this ground is wholly unarguable.

15.  In his third ground, the Applicant alleged that this Court’s finding that the Board’s Decision was without fault is irrational. This is a bare assertion without particulars. In essence, the Board found the Applicant not credible and had failed to discharge the burden of proving his entitlement to non-refoulement protection. The Board’s Decision must necessarily follow from its finding of the Applicant’s failure to discharge his burden of proof. This Court could detect no errors of law, procedural unfairness or irrationality in the Decision. Nor could this Court’s finding be criticized as irrational.

16.  Because of the complexity pleaded in his fourth ground, that ground is quoted in full below:

“I was deprived of legal representation, even though I informed the learned Judge about my appeal against the Director of Legal Aid’s decision to reject my application for Legal Aid application of Judicial Review, I am of the view that my Legal Aid application will be approved because my case has merits and I require proper legal support for handling a very complicated matter of judicial review.”

17.  The factual circumstances alleged are wholly alien to this Court. This Court has never received any notice from the Director of Legal Aid that the Applicant had applied for legal aid or that his application had been refused. His application for judicial review was disposed of by paper determination without a hearing. The Applicant never attended this Court during which he informed this Court that he was in the process of appealing the Director of Legal Aid’s decision refusing his legal aid application. Nor has he informed this Court the same by letter. This ground was most probably copied from a templet used in another case with circumstances different from those of the present case.

18.  Furthermore, it is well established that an asylum seeker is not entitled to legal representation at all stages of the non-refoulement proceedings. In Re Zafar Muazam[3], Re Zunariyah[4], Re Zahid Abbas[5], Re Tariq Farhan[6], and Re Lopchan Subash[7], the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[8] nor the judgment of FB v. Director of Immigration[9] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the non-refoulement proceedings. The Applicant was legal represented up to the conclusion of the screening interview, but not thereafter. The real question is whether he is thereby prejudiced for want of legal representation.

19.  The Applicant had the benefit of legal representation in presenting his case to the Director. All the benefits that legal representation could have afforded them were contained in their written submissions, non-refoulement claim form and answers in the screening interview given under legal advice. All these had been presented to the Director, which were then presented to the Board. Despite he was not legally represented at the oral hearing before the Board or in his application for leave to apply for judicial review, all the benefits which legal representation could have afforded them were before the Board and the Court. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the process before the Board or this Court. The Applicant suffered no prejudice due to lack of legal representation before the Board or this Court.  There is no substance in this ground of appeal.

20.  In conclusion, none of his grounds has merits. The Applicant’s intended appeal is wholly unarguable and has no prospect of success.

Prejudice to the respondent

21.  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

22.  The delay is very 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 has 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.